82_FR_57602 82 FR 57370 - Expediting Rate Cases

82 FR 57370 - Expediting Rate Cases

SURFACE TRANSPORTATION BOARD

Federal Register Volume 82, Issue 232 (December 5, 2017)

Page Range57370-57382
FR Document2017-26153

Pursuant to section 11 of the Surface Transportation Board Reauthorization Act of 2015 (STB Reauthorization Act), the Surface Transportation Board (Board) is modifying rules pertaining to its rate case procedures.

Federal Register, Volume 82 Issue 232 (Tuesday, December 5, 2017)
[Federal Register Volume 82, Number 232 (Tuesday, December 5, 2017)]
[Rules and Regulations]
[Pages 57370-57382]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-26153]


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SURFACE TRANSPORTATION BOARD

49 Parts 1104, 1109, 1111, 1114, and 1130

[Docket No. EP 733]


Expediting Rate Cases

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: Pursuant to section 11 of the Surface Transportation Board 
Reauthorization Act of 2015 (STB Reauthorization Act), the Surface 
Transportation Board (Board) is modifying rules pertaining to its rate 
case procedures.

DATES: This rule is effective on December 30, 2017.

ADDRESSES: Requests for information or questions regarding this final 
rule 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: Valerie Quinn, (202) 245-0283. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: Section 11 of the STB Reauthorization Act, 
Public Law 114-110, 129 Stat. 2228 (2015), directs the Board 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.'' In 
addition, section 11 requires the Board to comply with a new timeline 
in Stand-Alone Cost (SAC) cases.
    In advance of initiating this proceeding, Board staff held informal 
meetings with stakeholders \1\ to explore and discuss: (1) How 
procedures to expedite court litigation could be applied to rate cases 
and (2) additional ways to move SAC cases forward more expeditiously. 
The Board issued an Advance Notice of Proposed Rulemaking on June 15, 
2016, seeking formal comment on specific ideas raised in the informal 
meetings as well as comments on any other relevant matters. Expediting 
Rate Cases (ANPRM), EP 733 (STB served June 15, 2016). See 81 FR 40250 
(June 21, 2016). The Board received eight opening comments and six 
reply comments on the ANPRM.
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    \1\ 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 (NSR); 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. The Board notes that some participants 
expressed individual views, not on behalf of the organization(s) 
with which they are associated.
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    On March 31, 2017, the Board issued a Notice of Proposed 
Rulemaking, addressing the comments on the ANPRM and proposing specific

[[Page 57371]]

amendments to its regulations. Expediting Rate Cases (NPRM), EP 733 
(STB served Mar. 31, 2017). See 82 FR 16550 (April 5, 2017). The Board 
received four opening comments and six reply comments on the NPRM.\2\
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    \2\ Comments were received from the following organizations: The 
American Chemistry Council, the Fertilizer Institute, and the 
National Industrial Transportation League (ACC, TFI, and NITL); the 
Association of American Railroads (AAR); the National Grain and Feed 
Association (NGFA); Samuel J. Nasca on behalf of SMART/
Transportation Division, New York State Legislative Board; Union 
Pacific Railroad Company (UP); and the Western Coal Traffic League, 
American Public Power Association, Edison Electric Institute, 
National Association of Regulatory Utility Commissioners, National 
Rural Electric Cooperative Association, and Freight Rail Customer 
Alliance (collectively, Coal Shippers/NARUC).
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    Below, the Board addresses the comments and suggestions submitted 
by parties in response to the NPRM and discusses clarifications and 
modifications being adopted in the final rule to help improve the rate 
review process.\3\ The text of the final rule is below.
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    \3\ The final rule adopted in this rulemaking pertains mostly to 
SAC cases--the Board's methodology for large rate cases. However, 
some aspects of the final rule would also benefit cases filed under 
the Board's other methodologies, Simplified-SAC and Three-Benchmark 
(collectively, simplified standards). See Simplified Standards for 
Rail Rate Cases, EP 646 (Sub-No. 1) (STB served Sept. 5, 2007). In 
those instances, the rule will specify to which types of cases it 
applies.
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    Pre-Complaint Period. In the NPRM, the Board proposed to create a 
pre-complaint period, which would begin when a SAC complainant files a 
pre-filing notice with the Board. Under the proposed rule, a 
complainant would file the pre-filing notice at least 70 days prior to 
filing its complaint. The proposed pre-filing notice would contain the 
rate and origin/destination pair(s) to be challenged, the commodities 
at issue, and a motion for protective order pursuant to the proposed, 
new 49 CFR 1104.14(c).\4\ The Board also proposed to revise its 
regulations to move mandatory mediation in SAC cases to the pre-
complaint period.
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    \4\ In the NPRM, the Board proposed standard identifying markers 
for the submission of confidential, highly confidential, and 
sensitive security information in rate cases at Sec.  1104.14(c). 
This proposal is discussed in more detail, below.
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    Several stakeholders generally support the Board's proposed pre-
complaint period, although some suggested modification to the proposed 
rule. ACC, TFI, and NITL state that the pre-filing notice would allow 
parties to begin many functions that would typically occur after a 
complaint is filed and note that engaging in mediation before the 
filing of a complaint could potentially avoid the filing of a complaint 
at all. (ACC, TFI, & NITL NPRM Comments 3.) They also suggest that the 
Board allow for skipping or shortening the pre-complaint period when 
the statute of limitations would otherwise bar any portion of a 
complaint that is filed after the notice period expires. (Id. at 4.) 
AAR also supports conducting mediation during the pre-complaint period, 
noting that a pre-filing notice would potentially foster private-sector 
resolution of the dispute by allowing Board-administered mediation to 
begin earlier. (AAR NPRM Comments 5-6.) AAR, however, urges the Board 
to clarify that protective orders filed with the pre-filing notice may 
continue to include provisions recognizing a party's right to review 
its own confidential or highly confidential material referenced in the 
other party's filings. (AAR NPRM Comments 7; see also Coal Shippers/
NARUC NPRM Reply 4 (noting that they do not object to this request).) 
NGFA does not oppose the Board's proposal to provide for a pre-
complaint period and pre-filing notice so parties can engage in 
mediation before filing a SAC complaint but recommends that the 
mediation period span no more than 45 days, subject to extensions by 
agreement of the parties. (NGFA NPRM Comments 4.)
    Coal Shippers/NARUC urge the Board not to adopt the proposed pre-
complaint period rules. (Coal Shippers/NARUC NPRM Comments 14.) 
According to Coal Shippers/NARUC, the pre-filing notice requirement 
would lengthen the rate case schedule. (Id. at 16.) They also argue 
that the pre-filing notice would not expedite discovery. (Id. at 23 
(citing NSR ANPRM Comments 35 (``The railroad can only begin to gather 
the necessary documents and data once a shipper has . . . served its 
discovery requests, informing the railroad of the time frame for 
discovery materials and segments of the railroad for which discovery is 
sought''); AAR ANPRM Comments 6 (pre-filing notice ``would not actually 
expedite the rate case itself once it is filed'')); see also ACC, TFI, 
& NITL NPRM Reply 5.) According to Coal Shippers/NARUC, railroads would 
continue to ``withhold'' production of the most important information 
unless the Board establishes expedited post-complaint deadlines for 
discovery production. (Coal Shippers/NARUC NPRM Comments 24 (citing NSR 
ANPRM Comments 6).)
    Coal Shippers/NARUC urge that, if the Board establishes a pre-
filing notice requirement, it should also require railroads to provide 
common carrier rates and service terms to shippers upon request no 
later than 90 days prior to the anticipated start of the common carrier 
service. (Coal Shippers/NARUC NPRM Comments 29; see also ACC, TFI, & 
NITL NPRM Reply 5-6; NGFA NPRM Reply 3.) Coal Shippers/NARUC further 
argue that the pre-filing notice should be optional, (Coal Shippers/
NARUC NPRM Reply 11), and should be filed at least 40 days prior to the 
proposed filing date of a complaint, (Coal Shippers/NARUC NPRM Comments 
30; Coal Shippers/NARUC NPRM Reply 12; see also ACC, TFI, & NITL NPRM 
Reply 6; NGFA NPRM Reply 3).
    Coal Shippers/NARUC also do not support moving mandatory mediation 
to the pre-complaint period. According to Coal Shippers/NARUC, by the 
time a case reaches the Board, it is unlikely that a mediated 
resolution can be obtained. (Coal Shippers/NARUC NPRM Comments 20.) 
Coal Shippers/NARUC further argue that mediation is more beneficial 
following a complaint because the complaint provides valuable 
information to both the defendant carrier and mediator. (Id. at 21.) 
Coal Shippers/NARUC argue that the Board could best deal with the 
burdens imposed by the Board's current mandatory mediation rules by 
changing those rules to make mediation voluntary, not mandatory, in SAC 
cases. (Id. at 22.) Coal Shippers/NARUC argue that, if the Board 
proceeds with the proposed pre-complaint period, the mediation period 
should be 40 days (beginning when the pre-filing notice is submitted), 
subject to extensions if requested by all parties. (Id. at 32-33; Coal 
Shippers/NARUC NPRM Reply 12; see also ACC, TFI, & NITL NPRM Reply 6; 
NGFA NPRM Reply 3.) Coal Shippers/NARUC also argue that the Board 
should reduce the time allotted (i) to assign mediators after the pre-
filing notice is submitted from within 10 business days to within three 
business days, and (ii) for mediators to contact the parties from 
within five business days of assignment to within three business days. 
(Coal Shippers/NARUC NPRM Comments 32.)
    NGFA suggests the Board shorten the mediation period, specifically 
to no more than 45 days, subject to extension by mutual agreement of 
the parties. (NGFA NPRM Comments 4; NGFA NPRM Reply 3; see also ACC, 
TFI, & NITL NPRM Reply 4.) According to NGFA, by the time any non-
agricultural shipper files a SAC complaint, it already would have 
engaged in thorough discussions with the defendant railroad and formal 
action likely would be required to resolve their differences. (NGFA 
NPRM Comments 4; see also ACC, TFI, & NITL NPRM Reply 4.)
    UP opposes Coal Shippers/NARUC's suggestion that the Board require 
a

[[Page 57372]]

carrier to provide common carrier rates and service terms 90 days prior 
to the anticipated start of that service, arguing such a requirement 
would constitute a modification to the Board's rules governing the 
establishment of common carrier rates, which are neither the subject of 
this proceeding nor a logical outgrowth of the proposed rule. (UP NPRM 
Reply 6.) UP further argues that, even if such a rule were permissible, 
a carrier would retain its statutory right to increase the rate with 
20-days' notice or reduce the rate with no notice. (Id. at 7 (citing 49 
U.S.C. 11101(c) & Burlington N. R.R. v. STB, 75 F.3d 685, 694 (D.C. 
Cir. 1996)).)
    The Board continues to believe that establishing a pre-complaint 
period, during which parties would engage in mediation, would help rate 
cases proceed more efficiently. The pre-filing notice would put parties 
on notice as to what they likely will need to produce in discovery and 
enable parties to begin many activities that typically would occur only 
after a complaint is filed. In this respect, the pre-complaint period 
could shorten the rate case schedule by lessening the need for parties 
to request extensions of time once discovery begins. Establishing a 
pre-complaint period will also allow parties to engage in mediation 
before a complaint is filed, enabling parties to focus on mediation 
without the distractions of fully active litigation.\5\ In addition, 
the Board continues to believe that the early submission of a motion 
for protective order will expedite discovery production and disclosures 
by allowing a protective order to be in place at the outset of a case.
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    \5\ The Board intends for mediation to conclude before the 
filing of a complaint; however, consistent with current procedures, 
the rules would allow for an extension of time via Board order.
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    Additionally, completing Board-sponsored mediation during the pre-
complaint period could potentially prevent the filing of a complaint 
altogether. The Board prefers the resolution of disputes through 
mediation in lieu of formal Board proceedings whenever possible. See 49 
CFR 1109.1. AAR noted, and the Board agrees, that pre-complaint 
mediation could foster such resolutions before a formal complaint is 
filed. Mediation is widely used by courts as a measure for expediting 
proceedings.\6\ The Board disagrees with NGFA and Coal Shippers/NARUC 
that, by the time a complaint is filed, formal action would be required 
to resolve the parties' differences. In fact, parties in several rate 
cases have successfully mediated resolutions to rate disputes, even 
following the filing of a formal complaint. See NRG Power Marketing LLC 
v. CSX Transp., Inc., NOR 42122, slip op. at 1 (STB served July 8, 
2010); Williams Olefins, L.L.C. v. Grand Trunk Corp., NOR 42098 (STB 
served Feb. 15, 2007). See also E.I. Du Pont De Nemours & Co. v. CSX 
Transp., Inc., NOR 42112 (STB served May 11, 2009) (complaint 
challenging the reasonableness of rates dismissed following voluntary 
settlement). Resolving disputes in mediation would save parties 
considerable time and expense, and could better preserve their ongoing 
commercial relationship.
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    \6\ Under the Alternative Dispute Resolution Act of 1998 Section 
3, 28 U.S.C. 651(b), ``[e]ach United States district court shall 
authorize, by local rule . . ., the use of alternative dispute 
resolution processes in all civil actions.''
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    The Board also continues to believe that 70 days is the most 
appropriate length for the pre-complaint period because it would allow 
sufficient time for mediation to be completed before the filing of a 
formal complaint, thus freeing parties to focus on mediating a 
resolution before litigation begins. The Board is not persuaded by the 
arguments set forth by Coal Shippers/NARUC and NGFA in support of 
shorter pre-complaint and mediation periods. Coal Shippers/NARUC 
provide no support for their claim that 40 days is ``more than enough 
time'' for parties to reach a mediated solution.
    For these reasons, the Board will adopt the proposal in the NPRM 
with two modifications. First, the Board will modify the rule proposed 
in the NPRM to adopt Coal Shippers/NARUC's suggestion that the 
assignment of the mediator(s) should occur in fewer than 10 business 
days after the shipper submits its pre-filing notice. The Board finds 
that five business days would be a reasonable amount of time for the 
Board to assign the mediator(s).\7\ The Board will also modify the 
introductory text of the proposed new section to clarify that the pre-
filing notice is required only in SAC cases.
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    \7\ The Board, however, will maintain the current five business 
day deadline for mediator(s) to contact the parties to discuss 
ground rules and the time and location of any meeting. The Board 
believes that fewer than five days would not provide sufficient time 
for the mediator to establish ground rules for the mediation and 
contact the parties.
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    Second, in response to AAR's concern regarding a party's ability to 
view its own confidential information when such information is 
referenced in another party's filing, the Board clarifies that the 
rules adopted here would not affect the parties' ability to negotiate 
protective orders addressing that situation, as is routinely done now.
    The Board declines to adopt Coal Shippers/NARUC's suggestion that 
the Board require railroads to provide common carrier rates to shippers 
upon request no later than 90 days prior to the start of that service. 
The Board agrees with UP that the dates associated with the 
establishment of common carrier rates are beyond the scope of this 
proceeding.
    The Board also declines to adopt ACC, TFI, and NITL's suggestions 
that the Board allow the pre-complaint period to be skipped or 
shortened when the statute of limitations would otherwise bar any 
portion of a complaint. Adopting such an approach would effectively 
permit parties to ignore the pre-complaint period established in this 
final rule. Parties should take the applicable statute of limitations 
into account when preparing to file a rate case.
    Discovery. The Board also sought comment on several ways the Board 
could change its discovery procedures to help improve the processing of 
rate cases.
    a. Service of initial discovery requests and deadlines for 
production. In the NPRM, the Board proposed requiring parties in SAC 
proceedings to certify that they have served their initial discovery 
requests simultaneously with their complaint and answer. Several 
stakeholders generally support the Board's proposal. (See ACC, TFI, & 
NITL NPRM Comments 4; Coal Shippers/NARUC NPRM Comments 33-34; UP NPRM 
Reply 2.) Both Coal Shippers/NARUC and ACC, TFI, and NITL argue that 
the proposal would ensure discovery begins promptly. (See ACC, TFI, & 
NITL NPRM Comments 4; Coal Shippers/NARUC NPRM Comments 34.) However, 
ACC, TFI, and NITL suggest that the Board limit subsequent discovery 
requests because a party could ``game[]'' this requirement by 
submitting a skeletal initial discovery request with the intention of 
serving principal discovery requests at a later date. (ACC, TFI, & NITL 
NPRM Comment 4.) Coal Shippers/NARUC also argue that shippers should be 
permitted to include in their pre-filing notices discovery requests for 
``Core SAC Data,'' which Coal Shippers/NARUC describe as key categories 
of information shippers need to present a SAC case. (Coal Shippers/
NARUC NPRM Comments 30 & Attachment 1.) According to Coal Shippers/
NARUC, this requirement would allow carriers to begin collecting 
requested documents, expedite discovery, and eliminate the delay caused 
by ``carrier foot-dragging.'' (Id. at 30-32; Coal Shippers/NARUC NPRM 
Reply 13-14.)

[[Page 57373]]

    Additionally, both Coal Shippers/NARUC and ACC, TFI, and NITL 
suggest that the Board establish firm deadlines for defendant carriers 
to produce certain data. (ACC, TFI, & NITL NPRM Comments 4; Coal 
Shippers/NARUC NPRM Reply 15.) ACC, TFI, and NITL argue that defendant 
carriers should be required to produce traffic data within 90 days of 
the initial discovery request. (ACC, TFI, & NITL NPRM Comments 4-5.) 
Coal Shippers/NARUC argue that the defendant carrier(s) should be 
required to produce ``Core SAC Data'' no later than 70 days after 
receipt of the shipper's initial discovery requests.\8\ (Coal Shippers/
NARUC NPRM Comments 32.) NGFA supports Coal Shippers/NARUC's proposal, 
arguing that establishing a date for production of such data after the 
commencement of a formal complaint proceeding seems logical and 
efficient. (NGFA NPRM Reply 3.)
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    \8\ Under Coal Shippers/NARUC's proposal, the initial discovery 
requests would be filed (with the pre-filing notice) 40 days before 
the filing of the complaint, meaning the 70-day production deadline 
would fall 30 days after the filing of the formal complaint.
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    Both AAR and UP dispute the claims that railroads delay discovery. 
(AAR NPRM Reply 5-6; UP NPRM Reply 2.) They also both claim that 
production of discovery material in SAC cases, especially production of 
traffic data, is a resource- and time-intensive task, requiring the 
development of information not maintained in the ordinary course of 
business. (AAR NPRM Reply 7-8; UP NPRM Reply 2-3, V.S. Sanford 1 & 3.) 
According to UP, carriers should not be expected to begin compiling 
discovery material during the mediation period for several reasons. 
First, according to UP, doing so would effectively transform the pre-
filing notice into a complaint by immediately triggering discovery, yet 
ignoring the burdens involved in addressing disputes over the scope of 
discovery. Second, the proposal would cause a waste of resources if 
mediation succeeds. Third, parties may be able to resolve part of their 
dispute in mediation and narrow the scope of discovery. (UP NPRM Reply 
5-6.)
    Additionally, UP argues that the Board need not establish a firm 
discovery deadline because one already exists. (UP NPRM Reply 3 (``The 
rules establish a 150-day discovery period, followed by a 60-day period 
for preparing evidence.'').) According to UP, if the Board were to 
subdivide and micromanage the discovery period, the Board would 
generate more litigation by creating new types of disputes for the 
Board to resolve, imposing additional costs and delay. (Id.) UP also 
argues that shippers' timelines are unrealistic and assume that a 
railroad should produce traffic data without questioning the scope of a 
shipper's discovery requests. (UP NPRM Reply 3-4.) Additionally, UP 
notes that a defendant cannot begin producing traffic data until the 
geographical and temporal limits of a case are settled. (UP NPRM Reply 
2, V.S. Sanford 1 & 3.) AAR likewise argues that an ``arbitrary'' 
deadline for the production of ``Core SAC Data'' is unwarranted and 
impracticable given shipper groups' failure to provide any evidence in 
support of their ``foot-dragging'' claims and given the significant 
effort required of carriers to produce certain categories of ``Core SAC 
Data.'' (AAR NPRM Reply 5-8.)
    The final rule will adopt the proposal as set forth in the NPRM. 
The Board continues to believe that beginning discovery earlier in the 
rate review process (i.e., serving discovery requests with the 
complaint and answer) will help expedite discovery. These changes will 
eliminate the current potential gap between the filing of a complaint 
and the beginning of discovery, thus expediting both discovery and the 
rate case in general.
    The Board declines to adopt Coal Shippers/NARUC's recommendation 
that complainants be permitted to include discovery requests for ``Core 
SAC Data'' with their pre-filing notices. Because the scope of 
discovery could potentially evolve as parties proceed through 
mediation, the Board believes the appropriate time for parties to 
submit discovery requests is with the respective filings of the 
complaint and answer. Parties may resolve certain aspects of the 
dispute, such as the geographical and temporal limits for the case, and 
those agreements could significantly affect what data a party is 
required to produce and could render prior efforts to gather data 
superfluous.
    Additionally, because the Board's rules already provide a default 
procedural schedule for SAC cases that includes a 150-day deadline for 
the completion of discovery, the Board need not establish other interim 
discovery deadlines in this rulemaking. See 49 CFR 1111.8(a). The 
parties are free to--within the context of the Board's default 
procedural schedule or an agreed-upon procedural schedule--negotiate 
interim discovery deadlines on a case-by-case basis.
    Lastly, the Board declines to adopt the suggestion made by ACC, 
TFI, and NITL that the Board include a limit on subsequent discovery 
requests in the revised regulations. In accordance with 49 CFR 1103.27, 
the Board expects practitioners to exercise candor and fairness in 
dealing with other litigants. Attempts to ``game'' discovery 
requirements would contravene the canons of ethics governing 
practitioners before the Board. If a party believes subsequent 
discovery is overly broad or unduly burdensome, it may move to quash 
those requests. Additionally, the Board can, on its own initiative or 
at the request of a party, convene a staff conference to aid in 
resolving a discovery dispute.
    b. Meet-and-confer requirement. The Board also proposed in the NPRM 
to amend its regulations to require a party filing a motion to compel 
in a SAC or simplified standards case to certify that it has in good 
faith conferred or attempted to confer with the party serving discovery 
to settle the dispute without Board intervention. This requirement is 
similar to Federal Rule of Civil Procedure 37.
    Railroad and shipper interests generally support the Board's 
proposed meet-and-confer requirement. (AAR NPRM Comments 6-7; ACC, TFI, 
& NITL NPRM Comments 5; Coal Shippers/NARUC NPRM Comments 35; NGFA NPRM 
Comments 5; UP NPRM Reply 2.) Coal Shippers/NARUC ask the Board to 
clarify whether the proposed meet-and-confer obligation applies to 
requests for document production.\9\

[[Page 57374]]

(Coal Shippers/NARUC NPRM Comments 36; Coal Shippers/NARUC NPRM Reply 
16; see also NGFA NPRM Reply 4.)
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    \9\ Parties also raised the following arguments pertaining to 
regulations that apply to other Board proceedings besides rate 
cases.
     Coal Shippers/NARUC ask the Board to clarify whether 
the requirement in Sec.  1114.31(a) that motions to compel be filed 
with the Board within 10 days after the failure to obtain a 
responsive answer applies to requests for document production. (Coal 
Shippers/NARUC NPRM Comments 36-37; Coal Shippers/NARUC NPRM Reply 
3-4, 16; see also NGFA NPRM Reply 4.)
     AAR suggests the proposed meet-and-confer requirement 
should apply in all Board proceedings, not just rate cases. (AAR 
NPRM Comments 7 n.24; see also Coal Shippers/NARUC NPRM Reply 4, 
17.)
     ACC, TFI, and NITL ask the Board to clarify whether 
parties may continue to mutually agree to toll the 10-day period for 
filing motions to compel while they engage in negotiations and 
suggest that 30 days is a more realistic time line for filing 
motions to compel in SAC cases. (ACC, TFI, & NITL NPRM Comments 5; 
see also Coal Shippers/NARUC NPRM Reply 17.)
    In general, as noted in the ANPRM, the Board does not believe it 
is appropriate to make changes to regulations that would impact 
other proceedings in this rulemaking proceeding, which is 
specifically limited to procedures in rate cases.
    With respect to the concern from ACC, TFI, and NITL regarding 
agreements tolling the 10-day period, the Board believes that 10 
days is generally sufficient time to confer or attempt to confer 
with a party before filing a motion to compel under Sec.  
1114.31(a), and extending that period any further would 
unnecessarily delay discovery. If parties have conferred and are 
unable to reach a negotiated solution within 10 days, they may file 
a request for extension of time with the Board. Given the recent 
changes to the statutory deadlines for deciding rate cases, the 
Board finds it more appropriate to consider such requests in the 
context of the individual case than to incorporate a longer meet-
and-confer deadline into the Board's regulations.
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    The Board agrees with the majority of commenters that adding a 
meet-and-confer requirement modeled on Federal Rule of Civil Procedure 
37 would encourage parties to resolve disputes without involving the 
Board, thus reducing the number of disputes that reach the Board, 
requiring fewer Board decisions, and avoiding potential delays in 
processing rate cases. As requested by Coal Shippers/NARUC, the Board 
will clarify in the final rule adopted here that the requirement that a 
party filing a motion to compel in a SAC or simplified standards case 
certify that it has in good faith conferred or attempted to confer with 
the party serving discovery to settle the dispute without Board 
intervention will apply to all motions to compel.
    Evidentiary Submissions. The Board proposed several changes to its 
regulations governing the submission of evidence that were intended to 
improve and expedite the presentation of evidence in rate cases.
    a. Staggered filings and confidential designations. In the NPRM, 
the Board proposed changing its regulations to stagger the submission 
of confidential and public filings. Under the proposed rule, parties 
would submit highly confidential versions of the filings according to 
the procedural schedule, followed by public versions of those filings 
within three business days after the filing of the highly confidential 
versions. Additionally, the Board proposed standard identifying markers 
for the submission of confidential, highly confidential, and sensitive 
security information in both SAC and simplified standards rate 
cases.\10\ Specifically, the Board proposed that all confidential 
information be contained in single braces, i.e., {X{time} , all highly 
confidential information be contained in double braces, i.e., 
{{Y{time} {time} , and all sensitive security information be contained 
in triple braces, i.e., {{{Z{time} {time} {time} .
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    \10\ Protective orders in SAC cases generally distinguish 
between ``confidential,'' ``highly confidential,'' and ``sensitive 
security information.''
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    AAR and NGFA support the proposal to establish a standard 
convention for identifying confidential, highly confidential, and 
sensitive security information. (See AAR NPRM Comments 7; NGFA NPRM 
Comments 5.) AAR, Coal Shippers/NARUC, and NGFA also support the 
Board's proposal to stagger the submission of public and highly 
confidential versions of filings.\11\ (See AAR NPRM Comments 7; Coal 
Shippers/NARUC NPRM Comments 38; NGFA NPRM Comments 5.)
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    \11\ Coal Shippers/NARUC qualify their support, noting that they 
do not object to the Board's proposal, provided that the Board 
limits the universe of ``confidential information'' so that it does 
not include highly confidential information that is reclassified as 
confidential to permit a party to see its own highly confidential 
information (e.g., where a shipper files a pleading with the Board 
that contains information that the railroad has designated as highly 
confidential, and the shipper's counsel agrees to reclassify the 
information as confidential vis-[agrave]-vis the railroad so that 
the railroad's counsel can disclose the information (which came from 
the railroad in the first instance) to the railroad's in-house 
personnel). (Coal Shippers/NARUC NPRM Comments 25-26, 38; Coal 
Shippers/NARUC NPRM Reply 4, 18.) As the Board noted in the section 
related to the pre-complaint period, discussed above, the rules 
adopted here would not affect parties' ability to negotiate 
protective orders covering such circumstances, as is currently done.
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    ACC, TFI, and NITL do not object to this proposal but question 
whether it is feasible in practice. (ACC, TFI, & NITL NPRM Comments 6.) 
Specifically, ACC, TFI, and NITL state that, if confidentiality 
designations are not made until after the highly confidential version 
has been filed, confidential versions would no longer identify 
confidential text; as such, parties will have to cross-reference the 
confidential versions with the redacted public versions to identify 
confidential text, a process they claim is cumbersome and creates risk 
of inadvertent disclosures of confidential information. (ACC, TFI, & 
NITL NPRM Comments 6; ACC, TFI, & NITL NPRM Reply 8.) Coal Shippers/
NARUC, however, believe the Board's proposal would be feasible in 
practice and note that ACC, TFI, and NITL's feasibility concern appears 
to be premised on a scenario where the Board's proposal is interpreted 
as not requiring parties to make all bracket designations (i.e., highly 
confidential, confidential, and sensitive security information) when 
they make their initial filings with the Board containing this 
information. Coal Shippers/NARUC ask the Board to clarify its intent 
given ACC, TFI, and NITL's concern. (Coal Shippers/NARUC NPRM Reply 19-
20.)
    The Board finds that the standard designations for confidential 
information will help eliminate any confusion caused by parties using 
different methods of identification and, accordingly, this proposal 
will be adopted in the final rules. The Board also continues to believe 
that the proposal to stagger the filing of confidential and public 
filings will be beneficial and, therefore, will adopt this proposal as 
well. However, the Board will provide clarification in response to ACC, 
TFI, and NITL's concern regarding the feasibility of staggering the 
filings. Under the NPRM, a party would submit, by the deadline set 
forth in the procedural schedule, the non-public (e.g., confidential, 
highly confidential) version(s) of its filing with the appropriate 
confidentiality designations around any confidential, highly 
confidential, and sensitive security information.\12\ In this fashion, 
a party's non-public version(s) will clearly designate what information 
is confidential, highly confidential, and sensitive security 
information. The non-public version(s) would not be posted to the 
Board's Web site. The party would then have an additional three days to 
redact the confidential, highly confidential, and sensitive security 
information from the document(s) it filed with the Board and submit a 
public version of the filing to the Board. Thus, all confidentiality 
designations would be included in the initial version(s) of the filing 
submitted to the Board by the procedural deadline, indicating which 
information is non-public and the degree of confidentiality assigned. 
Accordingly, parties would not need to cross-reference the non-public 
version(s) with the redacted public version(s) to identify confidential 
text, as ACC, TFI, and NITL suggest. Rather, the purpose of this 
requirement is to provide parties a reasonable amount of time to ensure 
confidentiality redactions are properly made after submitting the non-
public version(s) of each filing without delaying the case. To codify 
this clarification in the final rule, the Board will replace the phrase 
``highly confidential versions of filings'' with ``non-public (e.g., 
confidential, highly confidential) versions of filings.''
---------------------------------------------------------------------------

    \12\ In the Board's experience, parties to rate cases typically 
do not submit confidential versions of their filings in addition to 
the highly confidential and public versions. To the extent that only 
highly confidential and public versions are filed, parties should 
continue to identify all confidential, highly confidential, and 
sensitive security information in the ``highly confidential'' 
filing, properly identifying each type of information according to 
the convention described in this final rule.
---------------------------------------------------------------------------

    b. Limits on final briefs. In the NPRM, the Board proposed limiting 
the length of final briefs in SAC and Simplified-SAC cases to 30 pages, 
inclusive of exhibits.\13\ Coal Shippers/NARUC and NGFA generally 
support limits on the length of final briefs. (See ACC, TFI, & NITL 
NPRM Comments 7; Coal Shippers/NARUC NPRM Comments 38; NGFA NPRM 
Comments 5; Coal Shippers/NARUC NPRM Reply 21.)

[[Page 57375]]

AAR also supports limiting final briefs but suggests that the Board set 
a limit of 30 pages or 13,000 words, consistent with the Federal Rules 
of Appellate Procedure, to avoid gamesmanship regarding type fonts and 
margins. (AAR NPRM Comments 8.) Neither ACC, TFI, and NITL nor Coal 
Shippers/NARUC object to such a word limit, although Coal Shippers/
NARUC note that the Board's rules already contain standards governing 
document formatting and font sizes. (ACC, TFI, & NITL NPRM Reply 8; 
Coal Shippers/NARUC NPRM Reply 4-5, 21-22.)
---------------------------------------------------------------------------

    \13\ Final briefs are not permitted under the procedural 
schedule in Three-Benchmark cases. See 49 CFR 1111.9(a)(2).
---------------------------------------------------------------------------

    ACC, TFI, and NITL also suggest that the Board stagger the 
submission of final briefs so a complainant would file its final brief 
two weeks after the defendant files its final brief. (ACC, TFI, & NITL 
NPRM Comments 7.) According to ACC, TFI, and NITL, staggering briefs 
would ensure that complainants, who have the burden of proof, can 
respond to the defendant's final brief rather than simply reiterate 
their rebuttal. (Id.; see also Coal Shippers/NARUC NPRM Reply 4-5, 21; 
NGFA NPRM Reply 4.) UP urges the Board to reject ACC, TFI, and NITL's 
proposal because final briefs are not evidence. (UP NPRM Reply 8 
(citing NPRM, EP 733, slip op. at 9).) Similarly, AAR argues that a 
complainant that has not included improper new arguments or new 
evidence in its rebuttal evidence should have little need to ``react'' 
to a defendant's brief. (AAR NPRM Reply 8-10.) AAR also argues that 
staggering final briefs would make it harder for the Board to process 
cases expeditiously since the Board's deadline for deciding a case now 
runs from the filing of rebuttal evidence--not the filing of final 
briefs. (AAR NPRM Reply 8-10.)
    AAR also asks the Board to reiterate its commitment to policing 
improper rebuttal evidence, strictly enforcing those rules, and either 
relieving defendants from the brief limit when responding to improper 
rebuttal evidence or giving defendants an opportunity to file a 
separate document (not subject to the brief length limit) that responds 
to improper rebuttal evidence. (AAR NPRM Comments 8.) ACC, TFI, and 
NITL object to AAR's proposal, arguing that it would give railroads the 
right to decide unilaterally when there has been an improper rebuttal 
and relieve themselves of brief limits. ACC, TFI, and NITL further 
state that the Board already has procedures for dealing with improper 
rebuttal evidence through motions to strike. (ACC, TFI, & NITL NPRM 
Reply 8.) Coal Shippers/NARUC also object to AAR's proposal, arguing 
that it would create a loophole that would defeat the purpose of the 
proposed rule and deprive shippers of procedural due process because 
shippers would not have an opportunity to respond to the carrier's 
claims of improper rebuttal. (Coal Shippers/NARUC NPRM Reply 5, 22.)
    Lastly, NGFA recommends that the Board tailor final briefs to 
``specific issues of concern to the Board'' by determining whether 
final briefs are needed on a case-by-case basis and imposing even 
shorter page limits where the issues do not justify 30 pages. (NGFA 
NPRM Comments 5-6.) Both Coal Shippers/NARUC and ACC, TFI, and NITL 
state that they do not object to the Board determining on a case-by-
case bases the need for, and length of, final briefs. (ACC, TFI, & NITL 
NPRM Reply 9; Coal Shippers/NARUC NPRM Reply 4-5, 21.)
    The Board will adopt the proposed 30-page limit, inclusive of 
exhibits, on the length of final briefs in SAC and Simplified-SAC 
cases. The Board believes the page limit will encourage parties to 
focus their briefs on the most important issues. As the Board noted in 
the NPRM, it has on occasion, in individual cases, imposed page limits 
on final briefs. See, e.g., Consumers Energy Co. v. CSX Transp., Inc., 
NOR 42142, slip op. at 1 (STB served June 3, 2016); Total Petrochems. & 
Ref. USA, Inc. v. CSX Transp., Inc., NOR 42121, slip op. at 4 (STB 
served Sept. 26, 2013). Based on the Board's prior experience in those 
cases, it believes 30 pages provides space sufficient for the parties 
to articulate their final concerns, but limited enough to prevent 
improper surrebuttal. The Board is not persuaded that a 13,000-word 
limit on final briefs, as proposed by AAR, is necessary to prevent 
gamesmanship regarding type fonts and margins. The Board's regulations 
already provide guidelines concerning document formatting and font 
sizes. See 49 CFR 1104.2 (``white paper not larger than 8\1/2\ by 11 
inches,'' ``double-spaced (except for footnotes and long quotations 
which may be single-spaced),'' ``using type not smaller than 12 
point'').
    The Board also declines to adopt ACC, TFI, and NITL's suggestion 
that the Board stagger the submission of final briefs. First, 
staggering final briefs would shorten the time between when final 
briefs are filed and when the Board must render a decision. Second, 
because parties are not permitted to raise new evidence or arguments in 
final briefs, a complainant need not respond to a defendant's final 
brief. Rather, final briefs are intended as a concise summary of the 
parties' positions to help focus the Board's analysis of the evidence 
and arguments and facilitate a more efficient resolution of outstanding 
issues. Nor will the Board adopt AAR's proposal to relieve defendants 
from the page limit to respond to improper rebuttal evidence or give 
defendants an opportunity to file a separate document when responding 
to improper rebuttal evidence. The Board agrees with ACC, TFI, and NITL 
that the Board's existing procedures for dealing with improper rebuttal 
evidence are sufficient.\14\
---------------------------------------------------------------------------

    \14\ In the event of improper rebuttal evidence, a party may 
file a motion to strike or a request to file supplemental 
information to respond to the improper rebuttal evidence.
---------------------------------------------------------------------------

    As the Board noted in the NPRM, while the Board believes 
designating topics for final briefs could be beneficial, doing so would 
require an additional Board decision following the close of evidence. 
The Board remains concerned that this additional step would curtail the 
already shortened period available to the Board for issuing a decision 
on the merits in SAC cases. The case-by-case approach regarding the 
necessity of and length for briefs proposed by NGFA would similarly 
require an additional decision by the Board. As is already the case, 
if, following receipt of final briefs, the Board believes it requires 
additional information to reach its decision, the Board may request 
supplemental information from the parties.
    Interaction with Board Staff. In the NPRM, the Board proposed 
increasing staff involvement at all stages of a rate case, both through 
technical conferences/written questions and a Board-appointed liaison 
to the parties. This change was intended to reduce the number of 
disputes between the parties that can delay the resolution of cases. 
The Board proposed appointing a liaison to the parties within 10 
business days of the submission of the pre-filing notice in SAC cases, 
and within 10 business days of the filing of the complaint in 
Simplified-SAC and Three-Benchmark cases. The liaison would not be 
recused from handling substantive elements of the case. In addition, 
the Board proposed greater use of written questions from staff and 
technical conferences with the parties at every stage of the case. When 
a technical conference is requested by a party or parties or convened 
by the Board, the Board would provide advance notice of the topics to 
be discussed to promote an efficient and productive conference.
    ACC, TFI, and NITL support the Board's proposal, stating that a 
liaison will improve communications between the parties and with the 
Board, potentially resolve disagreements,

[[Page 57376]]

provide guidance on process, and keep the case moving forward through 
status conferences. (ACC, TFI, & NITL NPRM Comments 3-4.) NGFA also 
supports this proposal, noting that the proposed staff involvement 
contemplated by the NPRM, including the establishment of ground rules, 
issue-specific Board expectations, and a point of contact for questions 
about the process, could prove to be extremely useful to grain and 
other agricultural shippers in the event such a case is filed. (NGFA 
NPRM Comments 6.)
    Coal Shippers/NARUC also generally support the Board's proposal for 
increased staff involvement in rate cases, but suggest two 
modifications. (See Coal Shippers/NARUC NPRM Comments 39.) First, Coal 
Shippers/NARUC argue that the Board should appoint the liaison after 
the shipper files its complaint. (Coal Shippers/NARUC NPRM Reply 23.) 
According to Coal Shippers/NARUC, there is no need for the Board to 
appoint a staff liaison during the mediation period, and the 
appointment itself could cause confusion because the Board's rules call 
for the mediator to supervise the parties' mediation, not the liaison. 
(Coal Shippers/NARUC NPRM Comments 26.) NGFA, however, disagrees, 
arguing that appointment of a liaison should be made during the pre-
filing phase to assist those parties that may be new to or unfamiliar 
with the rate-complaint process. (NGFA NPRM Reply 4-5.)
    Second, Coal Shippers/NARUC request the Board clarify that the 
parties and the liaison must abide by the Board's rules governing ex 
parte communications. (Coal Shippers/NARUC NPRM Comments 27.) 
Specifically, Coal Shippers/NARUC argue: (1) The liaison should be free 
to engage in joint communications with counsel for the parties as is 
done in technical conferences; (2) while it may not be necessary for 
the liaison to convene joint meetings at all times, all communications 
between the liaison and any of the parties to a case (e.g., letters, 
emails, and phone discussions) should be joint ones (e.g., conference 
calls where both parties participate, written communications copied to 
all parties, etc.); and (3) unless the parties otherwise agree, the 
parties should not be permitted to address the merits of the case (or 
case evidence) with the liaison and the liaison should not be permitted 
to address the merits of the case (or case evidence) with the parties. 
(Id. at 27-28; Coal Shippers/NARUC NPRM Reply 23.)
    UP argues that the ex parte restrictions proposed by Coal Shippers/
NARUC are vague, would have a chilling effect on communications, and 
would undermine the usefulness of the staff liaison. (UP NPRM Reply 7.) 
Moreover, UP argues, the Board's ex parte regulations should address 
any concern shippers have. (Id.) Likewise, AAR argues that the Board's 
ex parte regulations do not require that ``all communications'' be 
joint ones because the ex parte regulations bar only communications 
``concerning the merits of the proceeding.'' (AAR NPRM Reply 4.) AAR 
states that to effectively and efficiently manage rate cases, the staff 
liaison occasionally may need to communicate separately with parties on 
procedural issues, and such communications violate neither the ex parte 
rules nor the rules' purpose of safeguarding due process. (Id.)
    AAR supports increased use of written questions and technical 
conferences and the appointment a staff liaison to a rate case; 
however, AAR asks the Board to clarify that the staff liaison and the 
appointed mediator would be two separate individuals. (AAR NPRM 
Comments 6; AAR NPRM Reply 3-4.) AAR further suggests the Board modify 
its regulations to delegate to the liaison the authority to convene a 
technical conference and to rule on issues raised in such conferences. 
(AAR NPRM Comments 6.) According to AAR, this modification would enable 
the liaison to facilitate negotiation among the parties while still 
providing a clear path for Board oversight, as the liaison's rulings 
would be subject to the appellate standards for interlocutory appeals 
under 49 CFR 1115.9(b). (Id.) ACC, TFI, and NITL do not endorse AAR's 
suggestion, arguing that if the Board were to adopt such a change, it 
should provide details in a subsequent rulemaking for public comment 
and any such proposal should address the division of responsibility 
between the liaison and administrative law judges. (ACC, TFI, & NITL 
NPRM Reply 4.) Coal Shippers/NARUC likewise object to AAR's proposal, 
arguing that it would delay Board consideration of rate cases and turn 
informal technical conferences into formal adversarial proceedings. 
(Coal Shippers/NARUC NPRM Reply 5, 25.) Coal Shippers/NARUC also note 
that AAR's proposal is at odds with the role the Board envisioned the 
liaison would perform. (Id. at 25 (citing NRPM, EP 733, slip op. at 9 
(the function of the liaison is ``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'').))
    The Board will adopt the proposal in the NPRM. The Board continues 
to believe that increased communication between the parties and the 
Board will increase the efficiency of processing rate cases. The Board 
also believes that the appropriate time to appoint the liaison is 
following the submission of the shipper's pre-filing notice. As the 
Board noted in the NPRM, the goal of the liaison is to increase staff 
involvement at all stages of a rate cases, which would begin with the 
newly created pre-complaint period. The Board does not agree with Coal 
Shippers/NARUC that the appointment of a liaison would cause confusion 
with the mediator. The liaison and mediator will be clearly identified 
and distinct individuals, and the liaison will not participate in the 
mediation.\15\
---------------------------------------------------------------------------

    \15\ Because the liaison would not participate in the mediation, 
the liaison would not be recused from handling substantive elements 
of the case.
---------------------------------------------------------------------------

    However, the Board will clarify that the liaison would be required 
to comply with the Board's ex parte regulations. See 49 CFR 1102.2; see 
also Ex Parte Commc'ns in Informal Rulemaking Proceedings, EP 739 (STB 
served Sept. 28, 2017) (proposing modifications to the Board's ex parte 
regulations in informal rulemaking proceedings). See 82 FR 45771 (Oct. 
2, 2017). The Board is committed to ensuring that rate case 
proceedings, including the new liaison role, are conducted in a 
transparent and fair manner. Coal Shippers/NARUC have not provided any 
reason to believe that the Board's regulations would be ineffective; 
therefore, the Board finds no reason to expand its ex parte 
restrictions in rate case proceedings as suggested by Coal Shippers/
NARUC.
    Additionally, AAR's suggestion that the Board delegate to the 
liaison the authority to rule on issues exceeds the intended scope of 
the liaison's role. As noted in the NPRM, the liaison is intended 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.'' NPRM, EP 733, slip op. at 9. The liaison's role 
would be to work with parties to help primarily with procedural issues 
that arise through the processing of a rate case.\16\
---------------------------------------------------------------------------

    \16\ The Board also notes that its regulations already include 
mechanisms to expedite resolution of some issues. See, e.g., 49 CFR 
1011.6(c)(3) (delegating to the Director of the Board's Office of 
Proceedings, among other things, the authority to dispose of routine 
procedural matters in proceedings assigned for handling under 
modified procedure).
---------------------------------------------------------------------------

    Additional Comments. In addition to commenting on these specific 
proposals, some parties have also raised more general comments on how 
the Board could expedite rate cases. AAR notes certain internal reforms 
that could aid the Board in expediting rate case

[[Page 57377]]

litigation without the need for changes to the Board's rules. (AAR NPRM 
Comments 10.) Specifically, AAR cites to five recommendations of the 
Institute for the Advancement of the American Legal System at the 
University of Denver: (1) Setting firm dates early in the pretrial 
process for the close of discovery, the filing of dispositive motions, 
and trial, and maintaining those dates except in rare and truly unusual 
circumstances; (2) ruling expeditiously on motions, even when the 
motions are denied; (3) limiting the number of extensions sought by the 
parties during any phase of the case; (4) working to foster a local 
legal culture that accepts efficient case processing as the norm, and 
enforcing that culture through active judicial case management; and (5) 
tracking the status of cases and motions through internal statistical 
reporting, and disseminating the results internally and externally as 
appropriate. (AAR NPRM Comments 8, 8 n.28. (citing Civil Case 
Processing in the Federal District Courts, Inst. for the Advancement of 
the Am. Legal Sys. 9-10 (2009), http://www.uscourts.gov/sites/default/files/iaals_civil_case_processing_in_the_federal_district_courts_0.pdf).) 
ACC, TFI, and NITL similarly argue that the Board should enforce 
deadlines for completing discovery and grant extensions of time only in 
extraordinary circumstances and for the shortest possible time. (ACC, 
TFI, & NITL NPRM Reply 9.) The Board appreciates that the parties 
offered these additional recommendations. The Board is committed to 
processing rate cases as expeditiously as possible, and agrees that it 
is important to timely rule on motions and grant extensions of time 
judiciously.

The Final Rule

    The final rule adopted by the Board here contains changes to the 
Board's regulations at 49 CFR parts 1104, 1109, 1111, 1114, and 1130, 
which are set out below. The final rule would amend the existing 
procedures for filing and litigating a rate case, as directed by 
section 11 of the STB Reauthorization Act. While the rules adopted here 
are largely in response to section 11 of the STB Reauthorization Act, 
the Board intends to continue to review its rate regulations so that it 
may propose additional improvements to its rate review process in a 
subsequent rulemaking proceeding.
    Pre-Complaint Period. The final rule includes changes creating and 
detailing a pre-complaint period in SAC cases, which is intended to 
provide parties an opportunity to mediate the dispute free from the 
distraction of litigation and take steps in preparation for litigation 
before the filing of the complaint.
    1. Pre-filing Notice. The Board creates a pre-complaint period in a 
new 49 CFR 1111.1 by requiring a SAC complainant to submit a pre-filing 
notice at least 70 days prior to filing its complaint.\17\ The pre-
filing notice shall contain the rate and origin/destination pair(s) to 
be challenged, the commodities at issue, and a motion for protective 
order pursuant to newly created 49 CFR 1104.14(c).
---------------------------------------------------------------------------

    \17\ To accommodate the new Sec.  1111.1, the existing 
Sec. Sec.  1111.1-1111.10 will be redesignated as Sec. Sec.  1111.2-
1111.11.
---------------------------------------------------------------------------

    2. Mandatory Mediation. The Board revises 49 CFR 1109.4 to move 
mandatory mediation in SAC cases to the pre-complaint period. This 
change to the regulations would not impose new requirements but would 
require mediation to take place earlier to allow parties to focus on 
the mediation process without the distractions of fully active 
litigation. The Board intends for mediation to be complete prior to the 
filing of the complaint; however, consistent with current procedures, 
the rules will allow for an extension of time via Board order. 
Additionally, the Board revises its regulations to provide that it will 
assign one or more mediators to a case within 5 business days after the 
shipper submits its pre-filing notice (rather than the 10-business day 
period currently in place).
    3. Appointment of a Board Liaison to the Parties. The Board will 
require the appointment of a liaison to the parties within 10 business 
days of the complainant's submission of the pre-filing notice in SAC 
cases pursuant to new 49 CFR 1111.1(b) and in cases using simplified 
standards pursuant to newly redesignated 49 CFR 1111.10(a).
    Discovery. The final rule also includes changes to the Board's 
discovery regulations intended to streamline discovery in rate cases.
    1. Initial Discovery Requests. The Board will add 49 CFR 1111.2(f) 
and amend 49 CFR 1114.21(d) & (f) to require a complainant in a SAC 
proceeding to certify that it has served its initial discovery requests 
simultaneously with its complaint. The Board also will add 49 CFR 
1111.5(f) and amend 49 CFR 1114.21(d) & (f) to require a defendant in a 
SAC proceeding to certify that it has served its initial discovery 
requests simultaneously with its answer. To address the filing of an 
amended or supplemental complaint, the Board will amend the newly 
redesignated 49 CFR 1111.3(b) to require the complainant to certify 
that it has served on the defendant any new or modified discovery 
requests affected by the amended or supplemental complaint, if any. The 
Board will adopt a corresponding requirement at 49 CFR 1111.5(f), in 
which a defendant responding to an amended or supplemental complaint 
must certify that it has served on the complainant any new or modified 
discovery requests affected by the amended or supplemental complaint, 
if any.
    2. Meet-and-Confer Requirement. The Board will amend 49 CFR 
1114.31(a)(2) to require that all motions to compel in SAC cases and 
cases filed under simplified standards include a certification that the 
party filing the motion has in good faith conferred or attempted to 
confer with the party failing to answer discovery to settle the dispute 
over those terms without Board intervention.
    Evidentiary Submissions. The final rule includes changes to the 
Board's regulations governing the submission of evidence intended to 
improve and expedite the presentation of evidence in rate cases.
    1. Stagger the Submission of Public and Highly Confidential 
Versions of Filings. In both SAC and simplified standards cases, the 
Board will allow parties to submit non-public (e.g., confidential, 
highly confidential) versions of the filings according to the 
procedural schedule in a particular case, and submit public versions of 
those filings within three business days after the filing of the non-
public versions.
    2. Standard Convention for Identifying Confidential, Highly 
Confidential, and Sensitive Security Information. The Board will revise 
49 CFR 1104.14 to create standard identifying markers set forth in 
protective orders for the submission of confidential, highly 
confidential, and sensitive security information in rate cases. The 
standard identifying markers are as follows: All confidential 
information will be contained in single braces, i.e., {X{time} , all 
highly confidential information will be contained in double braces, 
i.e., {{Y{time} {time} , and all sensitive security information will be 
contained in triple braces, i.e., {{{Z{time} {time} {time} .
    3. Limits on Final Briefs. The Board will limit the length of final 
briefs to 30 pages, inclusive of exhibits, in SAC and Simplified-SAC 
cases.
    Technical Modifications. The Board adopts two technical 
modifications to the existing regulations. Specifically, the Board will 
amend the newly redesignated 49 CFR 1111.11(b) (requiring parties to 
meet at the beginning of the case to discuss procedural matters) to 
clarify that its requirements also apply to SAC cases.

[[Page 57378]]

The Board also will amend 49 CFR 1130.1 to include the correct 
reference to the newly redesignated 49 CFR 1111.2(a).
    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 
(RFA), 5 U.S.C. 601-612, generally requires a description and analysis 
of new rules that would have a significant economic impact on a 
substantial number of small entities. In drafting a rule, an agency is 
required to: (1) Assess the effect that its regulation will have on 
small entities; (2) analyze effective alternatives that may minimize a 
regulation's impact; and (3) make the analysis available for public 
comment. Sections 601-604. In its final rule, the agency must either 
include an initial regulatory flexibility analysis, section 603(a), or 
certify that the proposed rule would not have a ``significant impact on 
a substantial number of small entities,'' section 605(b). The impact 
must be a direct impact on small entities ``whose conduct is 
circumscribed or mandated'' by the proposed rule. White Eagle Coop. v. 
Conner, 553 F.3d 467, 480 (7th Cir. 2009).
    In the NPRM, the Board certified under 5 U.S.C. 605(b) that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA.\18\ 
The Board explained that the proposed changes to its regulations would 
not mandate or circumscribe the conduct of small entities. Rather, the 
changes proposed would be largely procedural or would codify existing 
practice, and would not have a significant economic impact on small 
entities. Additionally, the Board noted that, since the inception of 
the Board in 1996, only three of the 51 filed cases challenging the 
reasonableness of freight rail rates involved a Class III rail carrier 
as a defendant. Those three cases involved a total of 13 Class III rail 
carriers. The Board estimated that there are approximately 656 Class 
III rail carriers. Therefore, the Board certified under 5 U.S.C. 605(b) 
that these proposed rules, if promulgated, would not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the RFA.
---------------------------------------------------------------------------

    \18\ Effective June 30, 2016, for the purpose of RFA analysis 
for rail carriers subject to Board jurisdiction, the Board defines a 
``small business'' as only those rail carriers classified as Class 
III rail carriers under 49 CFR 1201.1-1. See Small Entity Size 
Standards Under the Regulatory Flexibility Act, EP 719 (STB served 
June 30, 2016) (with Board Member Begeman dissenting). See 81 FR 
42566 (June 30, 2016). Class III carriers have annual operating 
revenues of $20 million or less in 1991 dollars, or $35,809,698 or 
less when adjusted for inflation using 2016 data. Class II rail 
carriers have annual operating revenues of less than $250 million in 
1991 dollars or less than $447,621,226 when adjusted for inflation 
using 2016 data. The Board calculates the revenue deflator factor 
annually and publishes the railroad revenue thresholds on its Web 
site. 49 CFR 1201.1-1.
---------------------------------------------------------------------------

    The final rule adopted here revises the rules proposed in the NPRM; 
however, the same basis for the Board's certification of the proposed 
rule applies to the final rule. The final rule will not create a 
significant impact on a substantial number of small entities, as the 
regulations do not mandate or circumscribe the conduct of small 
entities. Thus, the Board again certifies under 5 U.S.C. 605(b) that 
the final rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA. A 
copy of this decision will be served upon the Chief Counsel for 
Advocacy, Office of Advocacy, U.S. Small Business Administration, 
Washington, DC 20416.
    Paperwork Reduction Act. In this proceeding, the Board is modifying 
an existing collection of information that is currently approved by the 
Office of Management and Budget (OMB) through May 31, 2020, under OMB 
Control No. 2140-0029. In the NPRM, the Board sought comments pursuant 
to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office 
of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3) 
regarding: (1) Whether the collection of information, as modified in 
the proposed rule and further described below, is necessary for the 
proper performance of the functions of the Board, including whether the 
collection has practical utility; (2) the accuracy of the Board's 
burden estimates; (3) ways to enhance the quality, utility, and clarity 
of the information collected; and (4) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology, when appropriate. No comments were received pertaining to 
the collection of this information under the PRA.
    This modification to an existing collection will be submitted to 
OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 
1320.11.
    It is ordered:
    1. The Board adopts the final rule as set forth in this decision. 
Notice of the adopted rule will be published in the Federal Register.
    2. This decision is effective December 30, 2017.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.

List of Subjects

49 CFR Part 1104

    Administrative practice and procedure.

49 CFR Part 1109

    Administrative practice and procedure, Maritime carriers, Motor 
carriers, Railroads.

49 CFR Part 1111

    Administrative practice and procedure, Investigations.

49 CFR Part 1114

    Administrative practice and procedure.

49 CFR Part 1130

    Administrative practice and procedure.

    Decided: November 29, 2017.
    By the Board, Board Members Begeman and Miller.
Jeffrey Herzig,
Clearance Clerk.
    For the reasons set forth in the preamble, the Surface 
Transportation Board amends title 49, chapter X, parts 1104, 1109, 
1111, 1114, and 1130 of the Code of Federal Regulations as follows:

PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-
PLEADINGS, GENERALLY

0
1. The authority citation for part 1104 is revised to read as follows:

    Authority:  5.U.S.C. 553 and 559; 18 U.S.C. 1621; and 49 U.S.C. 
1321.


0
2. In Sec.  1104.14, add paragraph (c) to read as follows:


Sec.  1104.14   Protective orders to maintain confidentiality.

* * * * *
    (c) Requests for protective orders in stand-alone cost and 
simplified standards cases. A motion for protective order in stand-
alone cost and simplified standards cases shall specify that 
evidentiary submissions will designate confidential material within 
single braces (i.e., {X{time} ), highly confidential material within 
double braces (i.e., {{Y{time} {time} ), and sensitive security 
information within triple braces (i.e., {{{Z{time} {time} {time} ). In 
stand-alone cost cases, the motion for protective order shall be filed 
together with the notice pursuant to 49 CFR 1111.1.

PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS

0
3. The authority citation for part 1109 is revised to read as follows:

    Authority: 49 U.S.C. 1321(a) and 5 U.S.C. 571 et seq.

[[Page 57379]]


0
4. In Sec.  1109.4, revise paragraphs (a), (b), and (g) to read as 
follows:


Sec.  1109.4  Mandatory mediation in rate cases to be considered under 
the stand-alone cost methodology.

    (a) Mandatory use of mediation. A shipper seeking rate relief from 
a railroad or railroads in a case involving the stand-alone cost 
methodology must engage in non-binding mediation of its dispute with 
the railroad upon submitting a pre-filing notice under 49 CFR part 
1111.
    (b) Assignment of mediators. Within 5 business days after the 
shipper submits its pre-filing notice, the Board will assign one or 
more mediators to the case. Within 5 business days of the assignment to 
mediate, the mediator(s) shall contact the parties to discuss ground 
rules and the time and location of any meeting.
* * * * *
    (g) Procedural schedule. Absent a specific order from the Board 
granting an extension, the mediation will not affect the procedural 
schedule in stand-alone cost rate cases set forth at 49 CFR 1111.9(a).

0
5. Part 1111 is revised to read as follows:

PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES

Sec.
1111.1 Pre-filing procedures in stand-alone cost cases.
1111.2 Content of formal complaints; joinder.
1111.3 Amended and supplemental complaints.
1111.4 Service.
1111.5 Answers and cross complaints.
1111.6 Motions to dismiss or to make more definite.
1111.7 Satisfaction of complaint.
1111.8 Investigations on the Board's own motion.
1111.9 Procedural schedule in stand-alone cost cases.
1111.10 Procedural schedule in cases using simplified standards.
1111.11 Meeting to discuss procedural matters.

    Authority:  49 U.S.C. 10704, 11701, and 1321.


Sec.  1111.1  Pre-filing procedures in stand-alone cost cases.

    (a) General. At least 70 days prior to the proposed filing of a 
complaint challenging the reasonableness of a rail rate based on stand-
alone cost, complainant shall file a notice with the Board. The notice 
shall:
    (1) Identify the rate to be challenged;
    (2) Identify the origin/destination pair(s) to be challenged;
    (3) Identify the affected commodities; and
    (4) Include a motion for protective order as set forth at 49 CFR 
1104.14(c).
    (b) Liaison. Within 10 days of the filing of the pre-filing notice, 
the Board shall appoint a liaison to the parties.


Sec.  1111.2  Content of formal complaints; joinder.

    (a) General. A formal complaint must contain the correct, 
unabbreviated names and addresses of each complainant and defendant. It 
should set forth briefly and in plain language the facts upon which it 
is based. It should include specific reference to pertinent statutory 
provisions and Board regulations, and should advise the Board and the 
defendant fully in what respects these provisions or regulations have 
been violated. The complaint should contain a detailed statement of the 
relief requested. Relief in the alternative or of several different 
types may be demanded, but the issues raised in the formal complaint 
should not be broader than those to which complainant's evidence is to 
be directed. In a complaint challenging the reasonableness of a rail 
rate, the complainant should indicate whether, in its view, the 
reasonableness of the rate should be examined using constrained market 
pricing or using the simplified standards adopted pursuant to 49 U.S.C. 
10701(d)(3). If the complainant seeks to use the simplified standards, 
it should support this request by submitting, at a minimum, the 
following information:
    (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.
    (11) For matters for which voluntary, binding arbitration is 
available pursuant to 49 CFR part 1108, the complaint shall state that 
arbitration was considered, but rejected, as a means of resolving the 
dispute.
    (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.
    (c) Multiple causes of action. Two or more grounds of complaint 
concerning the same principle, subject, or statement of facts may be 
included in one complaint, but should be stated and numbered 
separately.
    (d) Joinder. Two or more complainants may join in one complaint 
against one or more defendants if their respective causes of action 
concern substantially the same alleged violations and like facts.
    (e) Request for access to waybill data. Parties needing access to 
the Waybill Sample to prepare their case should follow the procedures 
set forth at 49 CFR 1244.9.
    (f) Discovery in stand-alone cost cases. Upon filing its complaint, 
the complainant shall certify that it has served its initial discovery 
requests on the defendant.


Sec.  1111.3  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 limits for responding to an amended or 
supplemental complaint are computed pursuant to Sec. Sec.  1111.5 and 
1111.6, as if the amended or supplemental complaint was an original 
complaint.
    (b) Stand-alone cost. If a complainant tenders an amended or 
supplemental complaint in a stand-alone cost case, the complainant 
shall certify that it has served on the defendant those initial 
discovery requests affected by the amended or supplemental complaint, 
if any.
    (c) 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.  1111.9 and 1111.10. However, only one mediation period per 
complaint shall be required.


Sec.  1111.4  Service.

    A complainant is responsible for serving formal complaints, amended 
or supplemental complaints, and cross complaints on the defendant(s). 
Service

[[Page 57380]]

shall be made by sending a copy of such complaint to the chief legal 
officer of each defendant by either confirmed facsimile and first-class 
mail or express overnight courier. The cover page of each such 
facsimile and the front of each such first-class mail or overnight 
express courier envelope shall include the following legend: ``Service 
of STB Complaint''. Service of the complaint shall be deemed completed 
on the date on which the complaint is served by confirmed facsimile or, 
if service is made by express overnight courier, on the date such 
complaint is actually received by the defendant. When the complaint 
involves more than one defendant, service of the complaint shall be 
deemed completed on the date on which all defendants have been served. 
An original and ten copies of the complaint should be filed with the 
Board together with an acknowledgment of service by the persons served 
or proof of service in the form of a statement of the date and manner 
of service, of the names of the persons served, and of the addresses to 
which the papers were mailed or at which they were delivered, certified 
by the person who made service. If complainant cannot serve the 
complaint, an original of each complaint accompanied by a sufficient 
number of copies to enable the Board to serve one upon each defendant 
and to retain 10 copies in addition to the original should be filed 
with the Board.


Sec.  1111.5  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.
    (f) Discovery in stand-alone cost cases. Upon filing its answer, 
the defendant shall certify that it has served its initial discovery 
requests on the complainant. If the complainant tenders an amended or 
supplemental complaint to which the defendant must reply, upon filing 
the answer to the amended or supplemental complaint, the defendant 
shall certify that it has served on the complainant those initial 
discovery requests affected by the amended or supplemental complaint, 
if any.


Sec.  1111.6  Motions to dismiss or to make more definite.

    An answer to a complaint or cross complaint may be accompanied by a 
motion to dismiss the complaint or cross complaint or a motion to make 
the complaint or cross complaint more definite. A motion to dismiss can 
be filed at anytime during a proceeding. A complainant or cross 
complainant may, within 10 days after an answer is filed, file a motion 
to make the answer more definite. Any motion to make more definite must 
specify the defects in the particular pleading and must describe fully 
the additional information or details thought to be necessary.


Sec.  1111.7  Satisfaction of complaint.

    If a defendant satisfies a formal complaint, either before or after 
answering, a statement to that effect signed by the complainant must be 
filed (original only need be filed), setting forth when and how the 
complaint has been satisfied. This action should be taken as 
expeditiously as possible.


Sec.  1111.8  Investigations on the Board's own motion.

    (a) Service of decision. A decision instituting an investigation on 
the Board's own motion will be served by the Board upon respondents.
    (b) Default. If within the time period stated in the decision 
instituting an investigation, a respondent fails to comply with any 
requirement specified in the decision, the respondent will be deemed in 
default and to have waived any further proceedings, and the 
investigation may be decided forthwith.


Sec.  1111.9  Procedural schedule in stand-alone cost cases.

    (a) Procedural schedule. Absent a specific order by the Board, the 
following general procedural schedule will apply in stand-alone cost 
cases after the pre-complaint period initiated by the pre-filing 
notice:
    (1) Day 0--Complaint filed, discovery period begins.
    (2) Day 7 or before--Conference of the parties convened pursuant to 
Sec.  1111.11(b).
    (3) Day 20--Defendant's answer to complaint due.
    (4) Day 150--Discovery completed.
    (5) Day 210--Complainant files opening evidence on absence of 
intermodal and intramodal competition, variable cost, and stand-alone 
cost issues.
    (6) Day 270--Defendant files reply evidence to complainant's 
opening evidence.
    (7) Day 305--Complainant files rebuttal evidence to defendant's 
reply evidence.
    (8) Day 335--Complainant and defendant file final briefs.
    (9) Day 485 or before--The Board issues its decision.
    (b) Staggered filings; final briefs. (1) The parties may submit 
non-public (e.g., confidential, highly confidential) versions of 
filings on the dates identified in the procedural schedule, and submit 
public versions of those filings within three business days thereafter.
    (2) Final briefs are limited to 30 pages, inclusive of exhibits.
    (c) Conferences with parties. (1) The Board will convene a 
technical conference of the parties with Board staff prior to the 
filing of any evidence in a stand-alone cost rate case, for the purpose 
of reaching agreement on the operating characteristics that are used in 
the variable cost calculations for the movements at issue. The parties 
should jointly propose a schedule for this technical conference.
    (2) In addition, the Board may convene a conference of the parties 
with Board staff, after discovery requests are served but before any 
motions to compel may be filed, to discuss discovery matters in stand-
alone cost rate cases.

[[Page 57381]]

The parties should jointly propose a schedule for this discovery 
conference.


Sec.  1111.10  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)(i) In cases relying upon the Simplified-SAC methodology:
    (A) Day 0--Complaint filed (including complainant's disclosure).
    (B) Day 10--Mediation begins.
    (C) Day 20--Defendant's answer to complaint (including defendant's 
initial disclosure).
    (D) Day 30--Mediation ends; discovery begins.
    (E) Day 140--Defendant's second disclosure.
    (F) Day 150--Discovery closes.
    (G) Day 220--Opening evidence.
    (H) Day 280--Reply evidence.
    (I) Day 310--Rebuttal evidence.
    (J) Day 320--Technical conference (market dominance and merits).
    (K) Day 330--Final briefs.
    (ii) In addition, the Board will appoint a liaison within 10 
business days of the filing of the complaint.
    (2)(i) In cases relying upon the Three-Benchmark methodology:
    (A) Day 0--Complaint filed (including complainant's disclosure).
    (B) Day 10--Mediation begins. (STB production of unmasked Waybill 
Sample.)
    (C) Day 20--Defendant's answer to complaint (including defendant's 
initial disclosure).
    (D) Day 30--Mediation ends; discovery begins.
    (E) Day 60--Discovery closes.
    (F) Day 90--Complainant's opening (initial tender of comparison 
group and opening evidence on market dominance). Defendant's opening 
(initial tender of comparison group).
    (G) Day 95--Technical conference on comparison group.
    (H) Day 120--Parties' final tenders on comparison group. 
Defendant's reply on market dominance.
    (I) Day 150--Parties' replies to final tenders. Complainant's 
rebuttal on market dominance.
    (ii) In addition, the Board will appoint a liaison within 10 
business days of the filing of the complaint.
    (b) Staggered filings; final briefs. (1) The parties may submit 
non-public (e.g., confidential, highly confidential) versions of 
filings on the dates identified in the procedural schedule, and submit 
public versions of those filings within three business days thereafter.
    (2) In cases relying upon the Simplified-SAC methodology, final 
briefs are limited to 30 pages, inclusive of exhibits.
    (c) 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.
    (d) 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.
    (e) 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.


Sec.  1111.11  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 or through email, discovery and procedural 
matters within 7 days after the complaint is filed in stand-alone cost 
cases, and 7 days after the mediation period ends in simplified 
standards cases. 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
6. The authority citation for part 1114 is revised to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 1321.

0
7. In Sec.  1114.21, revise paragraph (d) and the first sentence of 
paragraph (f) to read as follows:


Sec.  1114.21  Applicability; general provisions.

* * * * *
    (d) Sequence and timing of discovery. Unless the Board upon motion, 
and subject to the requirements at 49 CFR 1111.2(f) and 1111.5(f) in 
stand-alone cost cases, for the convenience of parties and witnesses 
and in the interest of justice, orders otherwise, methods of discovery 
may be used in any sequence and the fact that a party is conducting 
discovery, whether by deposition or otherwise, should not operate to 
delay any party's discovery.
* * * * *
    (f) Service of discovery materials. Unless otherwise ordered by the 
Board, and subject to the requirements at 49 CFR 1111.2(f) and 
1111.5(f) in stand-alone cost cases, depositions, interrogatories, 
requests for documents, requests for admissions, and answers and 
responses thereto, shall be served on other counsel and parties, but 
shall not be filed with the Board. * * *

0
8. In Sec.  1114.31, revise paragraph (a)(2) to read as follows:


Sec.  1114.31  Failure to respond to discovery.

    (a) * * *
    (2) Motions to compel in stand-alone cost and simplified standards 
rate cases. (i) Motions to compel in stand-alone cost and simplified 
standards rate cases must include a certification that the movant has 
in good faith conferred or attempted to confer with the person or party 
failing to answer discovery to obtain it without Board intervention.
    (ii) In a rate case to be considered under the stand-alone cost or 
simplified standards methodologies, a reply to a motion to compel must 
be filed with the Board within 10 days of when the motion to compel is 
filed.
* * * * *

[[Page 57382]]

PART 1130--INFORMAL COMPLAINTS

0
9. The authority citation for part 1130 is revised to read as follows:

    Authority: 49 U.S.C. 1321, 13301(f), 14709.


0
10. In Sec.  1130.1, revise paragraph (a) to read as follows:


Sec.  1130.1  When no damages sought.

    (a) Form and content; copies. Informal complaint may be by letter 
or other writing and will be serially numbered and filed. The complaint 
must contain the essential elements of a formal complaint as specified 
at 49 CFR 1111.2 and may embrace supporting papers. The original and 
one copy must be filed with the Board.
* * * * *
[FR Doc. 2017-26153 Filed 12-4-17; 8:45 am]
 BILLING CODE 4915-01-P



                                              57370            Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              12898, entitled ‘‘Federal Actions to                      Dated: November 15, 2017.                               modifying rules pertaining to its rate
                                              Address Environmental Justice in                        Steven Weiss,                                             case procedures.
                                              Minority Populations and Low-Income                     Acting Director, Antimicrobials Division,                 DATES: This rule is effective on
                                              Populations’’ (59 FR 7629, February 16,                 Office of Pesticide Programs.                             December 30, 2017.
                                              1994).                                                    Therefore, 40 CFR chapter I is                          ADDRESSES: Requests for information or
                                                 Since tolerances and exemptions that                                                                           questions regarding this final rule
                                                                                                      amended as follows:
                                              are established on the basis of a petition                                                                        should reference Docket No. EP 733 and
                                              under FFDCA section 408(d), such as                     PART 180—[AMENDED]                                        be in writing addressed to: Chief,
                                              the tolerance in this final rule, do not                                                                          Section of Administration, Office of
                                              require the issuance of a proposed rule,                ■ 1. The authority citation for part 180                  Proceedings, Surface Transportation
                                              the requirements of the Regulatory                      continues to read as follows:                             Board, 395 E Street SW., Washington,
                                              Flexibility Act (RFA) (5 U.S.C. 601 et
                                                                                                          Authority: 21 U.S.C. 321(q), 346a and 371.            DC 20423–0001.
                                              seq.), do not apply.
                                                 This action directly regulates growers,              ■ 2. In § 180.940, add alphabetically the                 FOR FURTHER INFORMATION CONTACT:
                                              food processors, food handlers, and food                pesticide chemical ‘‘1,3-dibromo-5,5-                     Valerie Quinn, (202) 245–0283.
                                              retailers, not States or tribes, nor does               dimethylhydantoin’’ to the table in                       Assistance for the hearing impaired is
                                              this action alter the relationships or                  paragraph (a) to read as follows:                         available through the Federal
                                              distribution of power and                                                                                         Information Relay Service (FIRS) at
                                                                                                      § 180.940 Tolerance exemptions for active                 (800) 877–8339.
                                              responsibilities established by Congress                and inert ingredients for use in
                                              in the preemption provisions of FFDCA                   antimicrobial formulations (Food-contact                  SUPPLEMENTARY INFORMATION: Section 11
                                              section 408(n)(4). As such, the Agency                  surface sanitizing solutions).                            of the STB Reauthorization Act, Public
                                              has determined that this action will not                *       *    *           *       *                        Law 114–110, 129 Stat. 2228 (2015),
                                              have a substantial direct effect on States                  (a) * * *                                             directs the Board to ‘‘initiate a
                                              or tribal governments, on the                                                                                     proceeding to assess procedures that are
                                              relationship between the national                                                          CAS                    available to parties in litigation before
                                              government and the States or tribal                         Pesticide chemical                          Limits    courts to expedite such litigation and
                                                                                                                                        Reg. No.
                                              governments, or on the distribution of                                                                            the potential application of any such
                                              power and responsibilities among the                                                                              procedures to rate cases.’’ In addition,
                                              various levels of government or between                    *        *        *                 *          *       section 11 requires the Board to comply
                                                                                                      1,3-dibromo-5,5-                  77–48–5      None.      with a new timeline in Stand-Alone
                                              the Federal Government and Indian                         dimethylhydantoin.
                                              tribes. Thus, the Agency has determined                                                                           Cost (SAC) cases.
                                              that Executive Order 13132, entitled                          *           *          *           *         *
                                                                                                                                                                  In advance of initiating this
                                              ‘‘Federalism’’ (64 FR 43255, August 10,                                                                           proceeding, Board staff held informal
                                              1999) and Executive Order 13175,                                                                                  meetings with stakeholders 1 to explore
                                                                                                      ■ 3. Add § 180.1346 to subpart D to read                  and discuss: (1) How procedures to
                                              entitled ‘‘Consultation and Coordination                as follows:
                                              with Indian Tribal Governments’’ (65 FR                                                                           expedite court litigation could be
                                              67249, November 9, 2000) do not apply                   § 180.1346 1,3-Dibromo-5,5-                               applied to rate cases and (2) additional
                                              to this action. In addition, this action                Dimethylhydantoin; exemption from the                     ways to move SAC cases forward more
                                              does not impose any enforceable duty or                 requirement of a tolerance.                               expeditiously. The Board issued an
                                              contain any unfunded mandate as                            Residues of 1,3-dibromo-5,5-                           Advance Notice of Proposed
                                              described under Title II of the Unfunded                dimethylhydantoin, including its                          Rulemaking on June 15, 2016, seeking
                                              Mandates Reform Act (UMRA) (2 U.S.C.                    metabolites and degradates, resulting                     formal comment on specific ideas raised
                                              1501 et seq.).                                          from the use of 1,3-dibromo-5,5-                          in the informal meetings as well as
                                                 This action does not involve any                     dimethylhydantoin in antimicrobial                        comments on any other relevant
                                              technical standards that would require                  treatment solutions of raw agricultural                   matters. Expediting Rate Cases
                                              Agency consideration of voluntary                       commodities in treatment facilities are                   (ANPRM), EP 733 (STB served June 15,
                                              consensus standards pursuant to section                 exempt from the requirement of a                          2016). See 81 FR 40250 (June 21, 2016).
                                              12(d) of the National Technology                        tolerance.                                                The Board received eight opening
                                              Transfer and Advancement Act                                                                                      comments and six reply comments on
                                                                                                      [FR Doc. 2017–25842 Filed 12–4–17; 8:45 am]               the ANPRM.
                                              (NTTAA) (15 U.S.C. 272 note).
                                                                                                      BILLING CODE 6560–50–P                                      On March 31, 2017, the Board issued
                                              VII. Congressional Review Act                                                                                     a Notice of Proposed Rulemaking,
                                                Pursuant to the Congressional Review                                                                            addressing the comments on the
                                              Act (5 U.S.C. 801 et seq.), EPA will                    SURFACE TRANSPORTATION BOARD                              ANPRM and proposing specific
                                              submit a report containing this rule and
                                              other required information to the U.S.                  49 Parts 1104, 1109, 1111, 1114, and                        1 Board staff met with individuals either

                                              Senate, the U.S. House of                               1130                                                      associated with and/or speaking on behalf of the
                                                                                                                                                                following organizations: American Chemistry
                                              Representatives, and the Comptroller                    [Docket No. EP 733]                                       Council; Archer Daniels Midland Company; CSX
                                              General of the United States prior to                                                                             Transportation, Inc.; Economists Incorporated; Dr.
                                              publication of the rule in the Federal                  Expediting Rate Cases                                     Gerald Faulhaber; FTI Consulting, Inc.; GKG Law,
                                              Register. This action is not a ‘‘major                                                                            P.C.; Growth Energy; Highroad Consulting; L.E.
                                                                                                      AGENCY:        Surface Transportation Board.              Peabody; LaRoe, Winn, Moerman & Donovan;
                                              rule’’ as defined by 5 U.S.C. 804(2).
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                                                                                                                                                                consultant Michael A. Nelson; Norfolk Southern
                                              List of Subjects in 40 CFR Part 180                     ACTION:       Final rule.                                 Railway Company (NSR); Olin Corporation; POET
                                                                                                                                                                Ethanol Products; Sidley Austin LLP; Slover &
                                                Environmental protection,                             SUMMARY:  Pursuant to section 11 of the                   Loftus LLP; Steptoe & Johnson LLP; The Chlorine
                                              Administrative practice and procedure,                  Surface Transportation Board                              Institute; The Fertilizer Institute; The National
                                                                                                                                                                Industrial Transportation League; and Thompson
                                              Agricultural commodities, Pesticides                    Reauthorization Act of 2015 (STB                          Hine LLP. The Board notes that some participants
                                              and pests, Reporting and recordkeeping                  Reauthorization Act), the Surface                         expressed individual views, not on behalf of the
                                              requirements.                                           Transportation Board (Board) is                           organization(s) with which they are associated.



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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                        57371

                                              amendments to its regulations.                          complaint at all. (ACC, TFI, & NITL                   service. (Coal Shippers/NARUC NPRM
                                              Expediting Rate Cases (NPRM), EP 733                    NPRM Comments 3.) They also suggest                   Comments 29; see also ACC, TFI, &
                                              (STB served Mar. 31, 2017). See 82 FR                   that the Board allow for skipping or                  NITL NPRM Reply 5–6; NGFA NPRM
                                              16550 (April 5, 2017). The Board                        shortening the pre-complaint period                   Reply 3.) Coal Shippers/NARUC further
                                              received four opening comments and six                  when the statute of limitations would                 argue that the pre-filing notice should
                                              reply comments on the NPRM.2                            otherwise bar any portion of a                        be optional, (Coal Shippers/NARUC
                                                 Below, the Board addresses the                       complaint that is filed after the notice              NPRM Reply 11), and should be filed at
                                              comments and suggestions submitted by                   period expires. (Id. at 4.) AAR also                  least 40 days prior to the proposed filing
                                              parties in response to the NPRM and                     supports conducting mediation during                  date of a complaint, (Coal Shippers/
                                              discusses clarifications and                            the pre-complaint period, noting that a               NARUC NPRM Comments 30; Coal
                                              modifications being adopted in the final                pre-filing notice would potentially                   Shippers/NARUC NPRM Reply 12; see
                                              rule to help improve the rate review                    foster private-sector resolution of the               also ACC, TFI, & NITL NPRM Reply 6;
                                              process.3 The text of the final rule is                 dispute by allowing Board-administered                NGFA NPRM Reply 3).
                                              below.                                                  mediation to begin earlier. (AAR NPRM                    Coal Shippers/NARUC also do not
                                                 Pre-Complaint Period. In the NPRM,                   Comments 5–6.) AAR, however, urges                    support moving mandatory mediation to
                                              the Board proposed to create a pre-                     the Board to clarify that protective                  the pre-complaint period. According to
                                              complaint period, which would begin                     orders filed with the pre-filing notice               Coal Shippers/NARUC, by the time a
                                              when a SAC complainant files a pre-                     may continue to include provisions                    case reaches the Board, it is unlikely
                                              filing notice with the Board. Under the                 recognizing a party’s right to review its             that a mediated resolution can be
                                              proposed rule, a complainant would file                 own confidential or highly confidential               obtained. (Coal Shippers/NARUC NPRM
                                              the pre-filing notice at least 70 days                  material referenced in the other party’s              Comments 20.) Coal Shippers/NARUC
                                              prior to filing its complaint. The                      filings. (AAR NPRM Comments 7; see                    further argue that mediation is more
                                              proposed pre-filing notice would                        also Coal Shippers/NARUC NPRM                         beneficial following a complaint
                                              contain the rate and origin/destination                 Reply 4 (noting that they do not object               because the complaint provides
                                              pair(s) to be challenged, the                           to this request).) NGFA does not oppose               valuable information to both the
                                              commodities at issue, and a motion for                  the Board’s proposal to provide for a                 defendant carrier and mediator. (Id. at
                                              protective order pursuant to the                        pre-complaint period and pre-filing                   21.) Coal Shippers/NARUC argue that
                                              proposed, new 49 CFR 1104.14(c).4 The                   notice so parties can engage in                       the Board could best deal with the
                                              Board also proposed to revise its                       mediation before filing a SAC complaint               burdens imposed by the Board’s current
                                              regulations to move mandatory                           but recommends that the mediation                     mandatory mediation rules by changing
                                              mediation in SAC cases to the pre-                      period span no more than 45 days,                     those rules to make mediation
                                              complaint period.                                       subject to extensions by agreement of                 voluntary, not mandatory, in SAC cases.
                                                 Several stakeholders generally                       the parties. (NGFA NPRM Comments 4.)                  (Id. at 22.) Coal Shippers/NARUC argue
                                              support the Board’s proposed pre-                          Coal Shippers/NARUC urge the Board                 that, if the Board proceeds with the
                                              complaint period, although some                         not to adopt the proposed pre-complaint               proposed pre-complaint period, the
                                              suggested modification to the proposed                  period rules. (Coal Shippers/NARUC                    mediation period should be 40 days
                                              rule. ACC, TFI, and NITL state that the                 NPRM Comments 14.) According to                       (beginning when the pre-filing notice is
                                              pre-filing notice would allow parties to                Coal Shippers/NARUC, the pre-filing                   submitted), subject to extensions if
                                              begin many functions that would                         notice requirement would lengthen the                 requested by all parties. (Id. at 32–33;
                                              typically occur after a complaint is filed              rate case schedule. (Id. at 16.) They also            Coal Shippers/NARUC NPRM Reply 12;
                                              and note that engaging in mediation                     argue that the pre-filing notice would                see also ACC, TFI, & NITL NPRM Reply
                                              before the filing of a complaint could                  not expedite discovery. (Id. at 23 (citing            6; NGFA NPRM Reply 3.) Coal
                                              potentially avoid the filing of a                       NSR ANPRM Comments 35 (‘‘The                          Shippers/NARUC also argue that the
                                                                                                      railroad can only begin to gather the                 Board should reduce the time allotted (i)
                                                 2 Comments were received from the following          necessary documents and data once a                   to assign mediators after the pre-filing
                                              organizations: The American Chemistry Council,          shipper has . . . served its discovery                notice is submitted from within 10
                                              the Fertilizer Institute, and the National Industrial   requests, informing the railroad of the               business days to within three business
                                              Transportation League (ACC, TFI, and NITL); the         time frame for discovery materials and                days, and (ii) for mediators to contact
                                              Association of American Railroads (AAR); the
                                              National Grain and Feed Association (NGFA);             segments of the railroad for which                    the parties from within five business
                                              Samuel J. Nasca on behalf of SMART/                     discovery is sought’’); AAR ANPRM                     days of assignment to within three
                                              Transportation Division, New York State Legislative     Comments 6 (pre-filing notice ‘‘would                 business days. (Coal Shippers/NARUC
                                              Board; Union Pacific Railroad Company (UP); and         not actually expedite the rate case itself            NPRM Comments 32.)
                                              the Western Coal Traffic League, American Public                                                                 NGFA suggests the Board shorten the
                                              Power Association, Edison Electric Institute,
                                                                                                      once it is filed’’)); see also ACC, TFI, &
                                              National Association of Regulatory Utility              NITL NPRM Reply 5.) According to Coal                 mediation period, specifically to no
                                              Commissioners, National Rural Electric Cooperative      Shippers/NARUC, railroads would                       more than 45 days, subject to extension
                                              Association, and Freight Rail Customer Alliance         continue to ‘‘withhold’’ production of                by mutual agreement of the parties.
                                              (collectively, Coal Shippers/NARUC).                                                                          (NGFA NPRM Comments 4; NGFA
                                                 3 The final rule adopted in this rulemaking
                                                                                                      the most important information unless
                                              pertains mostly to SAC cases—the Board’s                the Board establishes expedited post-                 NPRM Reply 3; see also ACC, TFI, &
                                              methodology for large rate cases. However, some         complaint deadlines for discovery                     NITL NPRM Reply 4.) According to
                                              aspects of the final rule would also benefit cases      production. (Coal Shippers/NARUC                      NGFA, by the time any non-agricultural
                                              filed under the Board’s other methodologies,            NPRM Comments 24 (citing NSR                          shipper files a SAC complaint, it already
                                              Simplified-SAC and Three-Benchmark (collectively,
                                                                                                      ANPRM Comments 6).)                                   would have engaged in thorough
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                                              simplified standards). See Simplified Standards for
                                              Rail Rate Cases, EP 646 (Sub-No. 1) (STB served            Coal Shippers/NARUC urge that, if                  discussions with the defendant railroad
                                              Sept. 5, 2007). In those instances, the rule will       the Board establishes a pre-filing notice             and formal action likely would be
                                              specify to which types of cases it applies.             requirement, it should also require                   required to resolve their differences.
                                                 4 In the NPRM, the Board proposed standard
                                                                                                      railroads to provide common carrier                   (NGFA NPRM Comments 4; see also
                                              identifying markers for the submission of
                                              confidential, highly confidential, and sensitive
                                                                                                      rates and service terms to shippers upon              ACC, TFI, & NITL NPRM Reply 4.)
                                              security information in rate cases at § 1104.14(c).     request no later than 90 days prior to the               UP opposes Coal Shippers/NARUC’s
                                              This proposal is discussed in more detail, below.       anticipated start of the common carrier               suggestion that the Board require a


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                                              57372            Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              carrier to provide common carrier rates                 be required to resolve the parties’                        The Board declines to adopt Coal
                                              and service terms 90 days prior to the                  differences. In fact, parties in several                Shippers/NARUC’s suggestion that the
                                              anticipated start of that service, arguing              rate cases have successfully mediated                   Board require railroads to provide
                                              such a requirement would constitute a                   resolutions to rate disputes, even                      common carrier rates to shippers upon
                                              modification to the Board’s rules                       following the filing of a formal                        request no later than 90 days prior to the
                                              governing the establishment of common                   complaint. See NRG Power Marketing                      start of that service. The Board agrees
                                              carrier rates, which are neither the                    LLC v. CSX Transp., Inc., NOR 42122,                    with UP that the dates associated with
                                              subject of this proceeding nor a logical                slip op. at 1 (STB served July 8, 2010);                the establishment of common carrier
                                              outgrowth of the proposed rule. (UP                     Williams Olefins, L.L.C. v. Grand Trunk                 rates are beyond the scope of this
                                              NPRM Reply 6.) UP further argues that,                  Corp., NOR 42098 (STB served Feb. 15,                   proceeding.
                                              even if such a rule were permissible, a                 2007). See also E.I. Du Pont De Nemours                    The Board also declines to adopt
                                              carrier would retain its statutory right to             & Co. v. CSX Transp., Inc., NOR 42112                   ACC, TFI, and NITL’s suggestions that
                                              increase the rate with 20-days’ notice or               (STB served May 11, 2009) (complaint                    the Board allow the pre-complaint
                                              reduce the rate with no notice. (Id. at 7               challenging the reasonableness of rates                 period to be skipped or shortened when
                                              (citing 49 U.S.C. 11101(c) & Burlington                 dismissed following voluntary                           the statute of limitations would
                                              N. R.R. v. STB, 75 F.3d 685, 694 (D.C.                  settlement). Resolving disputes in                      otherwise bar any portion of a
                                              Cir. 1996)).)                                           mediation would save parties                            complaint. Adopting such an approach
                                                 The Board continues to believe that                  considerable time and expense, and                      would effectively permit parties to
                                              establishing a pre-complaint period,                    could better preserve their ongoing                     ignore the pre-complaint period
                                              during which parties would engage in                    commercial relationship.                                established in this final rule. Parties
                                              mediation, would help rate cases                           The Board also continues to believe                  should take the applicable statute of
                                              proceed more efficiently. The pre-filing                that 70 days is the most appropriate                    limitations into account when preparing
                                              notice would put parties on notice as to                length for the pre-complaint period                     to file a rate case.
                                              what they likely will need to produce in                                                                           Discovery. The Board also sought
                                                                                                      because it would allow sufficient time
                                              discovery and enable parties to begin                                                                           comment on several ways the Board
                                                                                                      for mediation to be completed before the
                                              many activities that typically would                                                                            could change its discovery procedures
                                                                                                      filing of a formal complaint, thus freeing
                                              occur only after a complaint is filed. In                                                                       to help improve the processing of rate
                                                                                                      parties to focus on mediating a
                                              this respect, the pre-complaint period                                                                          cases.
                                                                                                      resolution before litigation begins. The                   a. Service of initial discovery requests
                                              could shorten the rate case schedule by                 Board is not persuaded by the
                                              lessening the need for parties to request                                                                       and deadlines for production. In the
                                                                                                      arguments set forth by Coal Shippers/                   NPRM, the Board proposed requiring
                                              extensions of time once discovery                       NARUC and NGFA in support of shorter
                                              begins. Establishing a pre-complaint                                                                            parties in SAC proceedings to certify
                                                                                                      pre-complaint and mediation periods.                    that they have served their initial
                                              period will also allow parties to engage                Coal Shippers/NARUC provide no
                                              in mediation before a complaint is filed,                                                                       discovery requests simultaneously with
                                                                                                      support for their claim that 40 days is                 their complaint and answer. Several
                                              enabling parties to focus on mediation                  ‘‘more than enough time’’ for parties to
                                              without the distractions of fully active                                                                        stakeholders generally support the
                                                                                                      reach a mediated solution.                              Board’s proposal. (See ACC, TFI, & NITL
                                              litigation.5 In addition, the Board                        For these reasons, the Board will
                                              continues to believe that the early                                                                             NPRM Comments 4; Coal Shippers/
                                                                                                      adopt the proposal in the NPRM with                     NARUC NPRM Comments 33–34; UP
                                              submission of a motion for protective                   two modifications. First, the Board will
                                              order will expedite discovery                                                                                   NPRM Reply 2.) Both Coal Shippers/
                                                                                                      modify the rule proposed in the NPRM                    NARUC and ACC, TFI, and NITL argue
                                              production and disclosures by allowing                  to adopt Coal Shippers/NARUC’s                          that the proposal would ensure
                                              a protective order to be in place at the                suggestion that the assignment of the                   discovery begins promptly. (See ACC,
                                              outset of a case.                                       mediator(s) should occur in fewer than
                                                 Additionally, completing Board-                                                                              TFI, & NITL NPRM Comments 4; Coal
                                                                                                      10 business days after the shipper                      Shippers/NARUC NPRM Comments 34.)
                                              sponsored mediation during the pre-                     submits its pre-filing notice. The Board
                                              complaint period could potentially                                                                              However, ACC, TFI, and NITL suggest
                                                                                                      finds that five business days would be                  that the Board limit subsequent
                                              prevent the filing of a complaint                       a reasonable amount of time for the
                                              altogether. The Board prefers the                                                                               discovery requests because a party
                                                                                                      Board to assign the mediator(s).7 The                   could ‘‘game[]’’ this requirement by
                                              resolution of disputes through
                                                                                                      Board will also modify the introductory                 submitting a skeletal initial discovery
                                              mediation in lieu of formal Board
                                                                                                      text of the proposed new section to                     request with the intention of serving
                                              proceedings whenever possible. See 49
                                                                                                      clarify that the pre-filing notice is                   principal discovery requests at a later
                                              CFR 1109.1. AAR noted, and the Board
                                                                                                      required only in SAC cases.                             date. (ACC, TFI, & NITL NPRM
                                              agrees, that pre-complaint mediation
                                                                                                         Second, in response to AAR’s concern                 Comment 4.) Coal Shippers/NARUC
                                              could foster such resolutions before a
                                                                                                      regarding a party’s ability to view its                 also argue that shippers should be
                                              formal complaint is filed. Mediation is
                                                                                                      own confidential information when                       permitted to include in their pre-filing
                                              widely used by courts as a measure for
                                                                                                      such information is referenced in                       notices discovery requests for ‘‘Core
                                              expediting proceedings.6 The Board
                                                                                                      another party’s filing, the Board clarifies             SAC Data,’’ which Coal Shippers/
                                              disagrees with NGFA and Coal
                                                                                                      that the rules adopted here would not                   NARUC describe as key categories of
                                              Shippers/NARUC that, by the time a                                                                              information shippers need to present a
                                                                                                      affect the parties’ ability to negotiate
                                              complaint is filed, formal action would                                                                         SAC case. (Coal Shippers/NARUC
                                                                                                      protective orders addressing that
                                                                                                      situation, as is routinely done now.                    NPRM Comments 30 & Attachment 1.)
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                                                 5 The Board intends for mediation to conclude

                                              before the filing of a complaint; however, consistent                                                           According to Coal Shippers/NARUC,
                                              with current procedures, the rules would allow for         7 The Board, however, will maintain the current      this requirement would allow carriers to
                                              an extension of time via Board order.                   five business day deadline for mediator(s) to contact   begin collecting requested documents,
                                                 6 Under the Alternative Dispute Resolution Act of    the parties to discuss ground rules and the time and    expedite discovery, and eliminate the
                                              1998 Section 3, 28 U.S.C. 651(b), ‘‘[e]ach United       location of any meeting. The Board believes that
                                              States district court shall authorize, by local rule    fewer than five days would not provide sufficient
                                                                                                                                                              delay caused by ‘‘carrier foot-dragging.’’
                                              . . ., the use of alternative dispute resolution        time for the mediator to establish ground rules for     (Id. at 30–32; Coal Shippers/NARUC
                                              processes in all civil actions.’’                       the mediation and contact the parties.                  NPRM Reply 13–14.)


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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                                57373

                                                 Additionally, both Coal Shippers/                    costs and delay. (Id.) UP also argues that            practitioners to exercise candor and
                                              NARUC and ACC, TFI, and NITL                            shippers’ timelines are unrealistic and               fairness in dealing with other litigants.
                                              suggest that the Board establish firm                   assume that a railroad should produce                 Attempts to ‘‘game’’ discovery
                                              deadlines for defendant carriers to                     traffic data without questioning the                  requirements would contravene the
                                              produce certain data. (ACC, TFI, & NITL                 scope of a shipper’s discovery requests.              canons of ethics governing practitioners
                                              NPRM Comments 4; Coal Shippers/                         (UP NPRM Reply 3–4.) Additionally, UP                 before the Board. If a party believes
                                              NARUC NPRM Reply 15.) ACC, TFI,                         notes that a defendant cannot begin                   subsequent discovery is overly broad or
                                              and NITL argue that defendant carriers                  producing traffic data until the                      unduly burdensome, it may move to
                                              should be required to produce traffic                   geographical and temporal limits of a                 quash those requests. Additionally, the
                                              data within 90 days of the initial                      case are settled. (UP NPRM Reply 2,                   Board can, on its own initiative or at the
                                              discovery request. (ACC, TFI, & NITL                    V.S. Sanford 1 & 3.) AAR likewise                     request of a party, convene a staff
                                              NPRM Comments 4–5.) Coal Shippers/                      argues that an ‘‘arbitrary’’ deadline for             conference to aid in resolving a
                                              NARUC argue that the defendant                          the production of ‘‘Core SAC Data’’ is                discovery dispute.
                                              carrier(s) should be required to produce                unwarranted and impracticable given                      b. Meet-and-confer requirement. The
                                              ‘‘Core SAC Data’’ no later than 70 days                 shipper groups’ failure to provide any                Board also proposed in the NPRM to
                                              after receipt of the shipper’s initial                  evidence in support of their ‘‘foot-                  amend its regulations to require a party
                                              discovery requests.8 (Coal Shippers/                    dragging’’ claims and given the                       filing a motion to compel in a SAC or
                                              NARUC NPRM Comments 32.) NGFA                           significant effort required of carriers to            simplified standards case to certify that
                                              supports Coal Shippers/NARUC’s                          produce certain categories of ‘‘Core SAC              it has in good faith conferred or
                                              proposal, arguing that establishing a                   Data.’’ (AAR NPRM Reply 5–8.)                         attempted to confer with the party
                                              date for production of such data after                     The final rule will adopt the proposal             serving discovery to settle the dispute
                                              the commencement of a formal                            as set forth in the NPRM. The Board                   without Board intervention. This
                                              complaint proceeding seems logical and                  continues to believe that beginning                   requirement is similar to Federal Rule of
                                              efficient. (NGFA NPRM Reply 3.)                         discovery earlier in the rate review                  Civil Procedure 37.
                                                 Both AAR and UP dispute the claims                   process (i.e., serving discovery requests                Railroad and shipper interests
                                              that railroads delay discovery. (AAR                    with the complaint and answer) will                   generally support the Board’s proposed
                                              NPRM Reply 5–6; UP NPRM Reply 2.)                       help expedite discovery. These changes                meet-and-confer requirement. (AAR
                                              They also both claim that production of                 will eliminate the current potential gap              NPRM Comments 6–7; ACC, TFI, &
                                              discovery material in SAC cases,                        between the filing of a complaint and                 NITL NPRM Comments 5; Coal
                                              especially production of traffic data, is               the beginning of discovery, thus                      Shippers/NARUC NPRM Comments 35;
                                              a resource- and time-intensive task,                    expediting both discovery and the rate                NGFA NPRM Comments 5; UP NPRM
                                              requiring the development of                            case in general.                                      Reply 2.) Coal Shippers/NARUC ask the
                                              information not maintained in the                          The Board declines to adopt Coal                   Board to clarify whether the proposed
                                              ordinary course of business. (AAR                       Shippers/NARUC’s recommendation                       meet-and-confer obligation applies to
                                              NPRM Reply 7–8; UP NPRM Reply 2–                        that complainants be permitted to                     requests for document production.9
                                              3, V.S. Sanford 1 & 3.) According to UP,                include discovery requests for ‘‘Core
                                              carriers should not be expected to begin                SAC Data’’ with their pre-filing notices.                9 Parties also raised the following arguments

                                              compiling discovery material during the                 Because the scope of discovery could                  pertaining to regulations that apply to other Board
                                                                                                                                                            proceedings besides rate cases.
                                              mediation period for several reasons.                   potentially evolve as parties proceed
                                                                                                                                                               • Coal Shippers/NARUC ask the Board to clarify
                                              First, according to UP, doing so would                  through mediation, the Board believes                 whether the requirement in § 1114.31(a) that
                                              effectively transform the pre-filing                    the appropriate time for parties to                   motions to compel be filed with the Board within
                                              notice into a complaint by immediately                  submit discovery requests is with the                 10 days after the failure to obtain a responsive
                                              triggering discovery, yet ignoring the                  respective filings of the complaint and               answer applies to requests for document
                                                                                                                                                            production. (Coal Shippers/NARUC NPRM
                                              burdens involved in addressing disputes                 answer. Parties may resolve certain                   Comments 36–37; Coal Shippers/NARUC NPRM
                                              over the scope of discovery. Second, the                aspects of the dispute, such as the                   Reply 3–4, 16; see also NGFA NPRM Reply 4.)
                                              proposal would cause a waste of                         geographical and temporal limits for the                 • AAR suggests the proposed meet-and-confer
                                              resources if mediation succeeds. Third,                 case, and those agreements could                      requirement should apply in all Board proceedings,
                                                                                                      significantly affect what data a party is             not just rate cases. (AAR NPRM Comments 7 n.24;
                                              parties may be able to resolve part of                                                                        see also Coal Shippers/NARUC NPRM Reply 4, 17.)
                                              their dispute in mediation and narrow                   required to produce and could render                     • ACC, TFI, and NITL ask the Board to clarify
                                              the scope of discovery. (UP NPRM                        prior efforts to gather data superfluous.             whether parties may continue to mutually agree to
                                              Reply 5–6.)                                                Additionally, because the Board’s                  toll the 10-day period for filing motions to compel
                                                 Additionally, UP argues that the                     rules already provide a default                       while they engage in negotiations and suggest that
                                              Board need not establish a firm                         procedural schedule for SAC cases that                30 days is a more realistic time line for filing
                                                                                                                                                            motions to compel in SAC cases. (ACC, TFI, & NITL
                                              discovery deadline because one already                  includes a 150-day deadline for the                   NPRM Comments 5; see also Coal Shippers/NARUC
                                              exists. (UP NPRM Reply 3 (‘‘The rules                   completion of discovery, the Board need               NPRM Reply 17.)
                                              establish a 150-day discovery period,                   not establish other interim discovery                    In general, as noted in the ANPRM, the Board
                                              followed by a 60-day period for                         deadlines in this rulemaking. See 49                  does not believe it is appropriate to make changes
                                                                                                                                                            to regulations that would impact other proceedings
                                              preparing evidence.’’).) According to                   CFR 1111.8(a). The parties are free to—               in this rulemaking proceeding, which is specifically
                                              UP, if the Board were to subdivide and                  within the context of the Board’s default             limited to procedures in rate cases.
                                              micromanage the discovery period, the                   procedural schedule or an agreed-upon                    With respect to the concern from ACC, TFI, and
                                              Board would generate more litigation by                 procedural schedule—negotiate interim                 NITL regarding agreements tolling the 10-day
                                              creating new types of disputes for the                  discovery deadlines on a case-by-case                 period, the Board believes that 10 days is generally
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                                                                                                                                                            sufficient time to confer or attempt to confer with
                                              Board to resolve, imposing additional                   basis.                                                a party before filing a motion to compel under
                                                                                                         Lastly, the Board declines to adopt the            § 1114.31(a), and extending that period any further
                                                8 Under Coal Shippers/NARUC’s proposal, the           suggestion made by ACC, TFI, and NITL                 would unnecessarily delay discovery. If parties
                                              initial discovery requests would be filed (with the     that the Board include a limit on                     have conferred and are unable to reach a negotiated
                                              pre-filing notice) 40 days before the filing of the                                                           solution within 10 days, they may file a request for
                                              complaint, meaning the 70-day production deadline
                                                                                                      subsequent discovery requests in the                  extension of time with the Board. Given the recent
                                              would fall 30 days after the filing of the formal       revised regulations. In accordance with               changes to the statutory deadlines for deciding rate
                                              complaint.                                              49 CFR 1103.27, the Board expects                                                                Continued




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                                              57374             Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              (Coal Shippers/NARUC NPRM                                 to stagger the submission of public and                  will provide clarification in response to
                                              Comments 36; Coal Shippers/NARUC                          highly confidential versions of filings.11               ACC, TFI, and NITL’s concern regarding
                                              NPRM Reply 16; see also NGFA NPRM                         (See AAR NPRM Comments 7; Coal                           the feasibility of staggering the filings.
                                              Reply 4.)                                                 Shippers/NARUC NPRM Comments 38;                         Under the NPRM, a party would submit,
                                                 The Board agrees with the majority of                  NGFA NPRM Comments 5.)                                   by the deadline set forth in the
                                              commenters that adding a meet-and-                          ACC, TFI, and NITL do not object to                    procedural schedule, the non-public
                                              confer requirement modeled on Federal                     this proposal but question whether it is                 (e.g., confidential, highly confidential)
                                              Rule of Civil Procedure 37 would                          feasible in practice. (ACC, TFI, & NITL                  version(s) of its filing with the
                                              encourage parties to resolve disputes                     NPRM Comments 6.) Specifically, ACC,                     appropriate confidentiality designations
                                              without involving the Board, thus                         TFI, and NITL state that, if                             around any confidential, highly
                                              reducing the number of disputes that                      confidentiality designations are not                     confidential, and sensitive security
                                              reach the Board, requiring fewer Board                    made until after the highly confidential                 information.12 In this fashion, a party’s
                                              decisions, and avoiding potential delays                  version has been filed, confidential                     non-public version(s) will clearly
                                              in processing rate cases. As requested by                 versions would no longer identify                        designate what information is
                                              Coal Shippers/NARUC, the Board will                       confidential text; as such, parties will                 confidential, highly confidential, and
                                              clarify in the final rule adopted here                    have to cross-reference the confidential                 sensitive security information. The non-
                                              that the requirement that a party filing                  versions with the redacted public                        public version(s) would not be posted to
                                              a motion to compel in a SAC or                            versions to identify confidential text, a                the Board’s Web site. The party would
                                              simplified standards case certify that it                 process they claim is cumbersome and                     then have an additional three days to
                                              has in good faith conferred or attempted                  creates risk of inadvertent disclosures of               redact the confidential, highly
                                              to confer with the party serving                          confidential information. (ACC, TFI, &                   confidential, and sensitive security
                                              discovery to settle the dispute without                   NITL NPRM Comments 6; ACC, TFI, &                        information from the document(s) it
                                              Board intervention will apply to all                      NITL NPRM Reply 8.) Coal Shippers/                       filed with the Board and submit a public
                                              motions to compel.                                        NARUC, however, believe the Board’s                      version of the filing to the Board. Thus,
                                                 Evidentiary Submissions. The Board                     proposal would be feasible in practice                   all confidentiality designations would
                                              proposed several changes to its                           and note that ACC, TFI, and NITL’s                       be included in the initial version(s) of
                                              regulations governing the submission of                   feasibility concern appears to be                        the filing submitted to the Board by the
                                              evidence that were intended to improve                    premised on a scenario where the                         procedural deadline, indicating which
                                              and expedite the presentation of                          Board’s proposal is interpreted as not                   information is non-public and the
                                              evidence in rate cases.                                   requiring parties to make all bracket                    degree of confidentiality assigned.
                                                 a. Staggered filings and confidential                  designations (i.e., highly confidential,                 Accordingly, parties would not need to
                                              designations. In the NPRM, the Board                      confidential, and sensitive security                     cross-reference the non-public
                                              proposed changing its regulations to                      information) when they make their                        version(s) with the redacted public
                                              stagger the submission of confidential                    initial filings with the Board containing                version(s) to identify confidential text,
                                              and public filings. Under the proposed                    this information. Coal Shippers/NARUC                    as ACC, TFI, and NITL suggest. Rather,
                                              rule, parties would submit highly                         ask the Board to clarify its intent given                the purpose of this requirement is to
                                              confidential versions of the filings                      ACC, TFI, and NITL’s concern. (Coal                      provide parties a reasonable amount of
                                              according to the procedural schedule,                     Shippers/NARUC NPRM Reply 19–20.)                        time to ensure confidentiality redactions
                                              followed by public versions of those                        The Board finds that the standard                      are properly made after submitting the
                                              filings within three business days after                  designations for confidential                            non-public version(s) of each filing
                                              the filing of the highly confidential                     information will help eliminate any                      without delaying the case. To codify
                                              versions. Additionally, the Board                         confusion caused by parties using                        this clarification in the final rule, the
                                              proposed standard identifying markers                     different methods of identification and,                 Board will replace the phrase ‘‘highly
                                              for the submission of confidential,                       accordingly, this proposal will be                       confidential versions of filings’’ with
                                              highly confidential, and sensitive                        adopted in the final rules. The Board                    ‘‘non-public (e.g., confidential, highly
                                              security information in both SAC and                      also continues to believe that the                       confidential) versions of filings.’’
                                              simplified standards rate cases.10                        proposal to stagger the filing of                           b. Limits on final briefs. In the NPRM,
                                              Specifically, the Board proposed that all                 confidential and public filings will be                  the Board proposed limiting the length
                                              confidential information be contained in                  beneficial and, therefore, will adopt this               of final briefs in SAC and Simplified-
                                              single braces, i.e., {X}, all highly                      proposal as well. However, the Board                     SAC cases to 30 pages, inclusive of
                                              confidential information be contained in                                                                           exhibits.13 Coal Shippers/NARUC and
                                              double braces, i.e., {{Y}}, and all                         11 Coal Shippers/NARUC qualify their support,
                                                                                                                                                                 NGFA generally support limits on the
                                              sensitive security information be                         noting that they do not object to the Board’s
                                                                                                        proposal, provided that the Board limits the
                                                                                                                                                                 length of final briefs. (See ACC, TFI, &
                                              contained in triple braces, i.e., {{{Z}}}.                universe of ‘‘confidential information’’ so that it      NITL NPRM Comments 7; Coal
                                                 AAR and NGFA support the proposal                      does not include highly confidential information         Shippers/NARUC NPRM Comments 38;
                                              to establish a standard convention for                    that is reclassified as confidential to permit a party   NGFA NPRM Comments 5; Coal
                                              identifying confidential, highly                          to see its own highly confidential information (e.g.,
                                                                                                        where a shipper files a pleading with the Board that
                                                                                                                                                                 Shippers/NARUC NPRM Reply 21.)
                                              confidential, and sensitive security                      contains information that the railroad has
                                              information. (See AAR NPRM                                designated as highly confidential, and the shipper’s       12 In the Board’s experience, parties to rate cases

                                              Comments 7; NGFA NPRM Comments                            counsel agrees to reclassify the information as          typically do not submit confidential versions of
                                              5.) AAR, Coal Shippers/NARUC, and                         confidential vis-à-vis the railroad so that the         their filings in addition to the highly confidential
                                                                                                        railroad’s counsel can disclose the information          and public versions. To the extent that only highly
                                              NGFA also support the Board’s proposal
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                                                                                                        (which came from the railroad in the first instance)     confidential and public versions are filed, parties
                                                                                                        to the railroad’s in-house personnel). (Coal             should continue to identify all confidential, highly
                                              cases, the Board finds it more appropriate to             Shippers/NARUC NPRM Comments 25–26, 38; Coal             confidential, and sensitive security information in
                                              consider such requests in the context of the              Shippers/NARUC NPRM Reply 4, 18.) As the Board           the ‘‘highly confidential’’ filing, properly
                                              individual case than to incorporate a longer meet-        noted in the section related to the pre-complaint        identifying each type of information according to
                                              and-confer deadline into the Board’s regulations.         period, discussed above, the rules adopted here          the convention described in this final rule.
                                                10 Protective orders in SAC cases generally             would not affect parties’ ability to negotiate             13 Final briefs are not permitted under the

                                              distinguish between ‘‘confidential,’’ ‘‘highly            protective orders covering such circumstances, as is     procedural schedule in Three-Benchmark cases. See
                                              confidential,’’ and ‘‘sensitive security information.’’   currently done.                                          49 CFR 1111.9(a)(2).



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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                                   57375

                                              AAR also supports limiting final briefs                 proposed rule and deprive shippers of                 more efficient resolution of outstanding
                                              but suggests that the Board set a limit of              procedural due process because                        issues. Nor will the Board adopt AAR’s
                                              30 pages or 13,000 words, consistent                    shippers would not have an opportunity                proposal to relieve defendants from the
                                              with the Federal Rules of Appellate                     to respond to the carrier’s claims of                 page limit to respond to improper
                                              Procedure, to avoid gamesmanship                        improper rebuttal. (Coal Shippers/                    rebuttal evidence or give defendants an
                                              regarding type fonts and margins. (AAR                  NARUC NPRM Reply 5, 22.)                              opportunity to file a separate document
                                              NPRM Comments 8.) Neither ACC, TFI,                        Lastly, NGFA recommends that the                   when responding to improper rebuttal
                                              and NITL nor Coal Shippers/NARUC                        Board tailor final briefs to ‘‘specific               evidence. The Board agrees with ACC,
                                              object to such a word limit, although                   issues of concern to the Board’’ by                   TFI, and NITL that the Board’s existing
                                              Coal Shippers/NARUC note that the                       determining whether final briefs are                  procedures for dealing with improper
                                              Board’s rules already contain standards                 needed on a case-by-case basis and                    rebuttal evidence are sufficient.14
                                              governing document formatting and font                  imposing even shorter page limits where                  As the Board noted in the NPRM,
                                              sizes. (ACC, TFI, & NITL NPRM Reply                     the issues do not justify 30 pages.                   while the Board believes designating
                                              8; Coal Shippers/NARUC NPRM Reply                       (NGFA NPRM Comments 5–6.) Both                        topics for final briefs could be
                                              4–5, 21–22.)                                            Coal Shippers/NARUC and ACC, TFI,                     beneficial, doing so would require an
                                                 ACC, TFI, and NITL also suggest that                 and NITL state that they do not object                additional Board decision following the
                                              the Board stagger the submission of final               to the Board determining on a case-by-                close of evidence. The Board remains
                                              briefs so a complainant would file its                  case bases the need for, and length of,               concerned that this additional step
                                              final brief two weeks after the defendant               final briefs. (ACC, TFI, & NITL NPRM                  would curtail the already shortened
                                              files its final brief. (ACC, TFI, & NITL                Reply 9; Coal Shippers/NARUC NPRM                     period available to the Board for issuing
                                              NPRM Comments 7.) According to ACC,                     Reply 4–5, 21.)                                       a decision on the merits in SAC cases.
                                              TFI, and NITL, staggering briefs would                     The Board will adopt the proposed                  The case-by-case approach regarding the
                                              ensure that complainants, who have the                  30-page limit, inclusive of exhibits, on              necessity of and length for briefs
                                              burden of proof, can respond to the                     the length of final briefs in SAC and                 proposed by NGFA would similarly
                                              defendant’s final brief rather than                     Simplified-SAC cases. The Board                       require an additional decision by the
                                              simply reiterate their rebuttal. (Id.; see              believes the page limit will encourage                Board. As is already the case, if,
                                              also Coal Shippers/NARUC NPRM                           parties to focus their briefs on the most             following receipt of final briefs, the
                                              Reply 4–5, 21; NGFA NPRM Reply 4.)                      important issues. As the Board noted in               Board believes it requires additional
                                              UP urges the Board to reject ACC, TFI,                  the NPRM, it has on occasion, in                      information to reach its decision, the
                                              and NITL’s proposal because final briefs                individual cases, imposed page limits                 Board may request supplemental
                                              are not evidence. (UP NPRM Reply 8                      on final briefs. See, e.g., Consumers                 information from the parties.
                                              (citing NPRM, EP 733, slip op. at 9).)                  Energy Co. v. CSX Transp., Inc., NOR                     Interaction with Board Staff. In the
                                              Similarly, AAR argues that a                            42142, slip op. at 1 (STB served June 3,              NPRM, the Board proposed increasing
                                              complainant that has not included                       2016); Total Petrochems. & Ref. USA,                  staff involvement at all stages of a rate
                                              improper new arguments or new                           Inc. v. CSX Transp., Inc., NOR 42121,                 case, both through technical
                                              evidence in its rebuttal evidence should                slip op. at 4 (STB served Sept. 26, 2013).            conferences/written questions and a
                                              have little need to ‘‘react’’ to a                      Based on the Board’s prior experience in              Board-appointed liaison to the parties.
                                              defendant’s brief. (AAR NPRM Reply 8–                   those cases, it believes 30 pages                     This change was intended to reduce the
                                              10.) AAR also argues that staggering                    provides space sufficient for the parties             number of disputes between the parties
                                              final briefs would make it harder for the               to articulate their final concerns, but               that can delay the resolution of cases.
                                              Board to process cases expeditiously                    limited enough to prevent improper                    The Board proposed appointing a
                                              since the Board’s deadline for deciding                 surrebuttal. The Board is not persuaded               liaison to the parties within 10 business
                                              a case now runs from the filing of                      that a 13,000-word limit on final briefs,
                                                                                                                                                            days of the submission of the pre-filing
                                              rebuttal evidence—not the filing of final               as proposed by AAR, is necessary to
                                                                                                                                                            notice in SAC cases, and within 10
                                              briefs. (AAR NPRM Reply 8–10.)                          prevent gamesmanship regarding type
                                                                                                                                                            business days of the filing of the
                                                 AAR also asks the Board to reiterate                 fonts and margins. The Board’s
                                                                                                                                                            complaint in Simplified-SAC and
                                              its commitment to policing improper                     regulations already provide guidelines
                                                                                                                                                            Three-Benchmark cases. The liaison
                                              rebuttal evidence, strictly enforcing                   concerning document formatting and
                                                                                                                                                            would not be recused from handling
                                              those rules, and either relieving                       font sizes. See 49 CFR 1104.2 (‘‘white
                                                                                                                                                            substantive elements of the case. In
                                              defendants from the brief limit when                    paper not larger than 81⁄2 by 11 inches,’’
                                                                                                                                                            addition, the Board proposed greater use
                                              responding to improper rebuttal                         ‘‘double-spaced (except for footnotes
                                                                                                                                                            of written questions from staff and
                                              evidence or giving defendants an                        and long quotations which may be
                                              opportunity to file a separate document                 single-spaced),’’ ‘‘using type not smaller            technical conferences with the parties at
                                              (not subject to the brief length limit) that            than 12 point’’).                                     every stage of the case. When a
                                              responds to improper rebuttal evidence.                    The Board also declines to adopt                   technical conference is requested by a
                                              (AAR NPRM Comments 8.) ACC, TFI,                        ACC, TFI, and NITL’s suggestion that                  party or parties or convened by the
                                              and NITL object to AAR’s proposal,                      the Board stagger the submission of final             Board, the Board would provide
                                              arguing that it would give railroads the                briefs. First, staggering final briefs                advance notice of the topics to be
                                              right to decide unilaterally when there                 would shorten the time between when                   discussed to promote an efficient and
                                              has been an improper rebuttal and                       final briefs are filed and when the Board             productive conference.
                                              relieve themselves of brief limits. ACC,                must render a decision. Second, because                  ACC, TFI, and NITL support the
                                              TFI, and NITL further state that the                    parties are not permitted to raise new                Board’s proposal, stating that a liaison
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                                              Board already has procedures for                        evidence or arguments in final briefs, a              will improve communications between
                                              dealing with improper rebuttal evidence                 complainant need not respond to a                     the parties and with the Board,
                                              through motions to strike. (ACC, TFI, &                 defendant’s final brief. Rather, final                potentially resolve disagreements,
                                              NITL NPRM Reply 8.) Coal Shippers/                      briefs are intended as a concise                        14 In the event of improper rebuttal evidence, a
                                              NARUC also object to AAR’s proposal,                    summary of the parties’ positions to                  party may file a motion to strike or a request to file
                                              arguing that it would create a loophole                 help focus the Board’s analysis of the                supplemental information to respond to the
                                              that would defeat the purpose of the                    evidence and arguments and facilitate a               improper rebuttal evidence.



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                                              57376            Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              provide guidance on process, and keep                   chilling effect on communications, and                between the parties and the Board will
                                              the case moving forward through status                  would undermine the usefulness of the                 increase the efficiency of processing rate
                                              conferences. (ACC, TFI, & NITL NPRM                     staff liaison. (UP NPRM Reply 7.)                     cases. The Board also believes that the
                                              Comments 3–4.) NGFA also supports                       Moreover, UP argues, the Board’s ex                   appropriate time to appoint the liaison
                                              this proposal, noting that the proposed                 parte regulations should address any                  is following the submission of the
                                              staff involvement contemplated by the                   concern shippers have. (Id.) Likewise,                shipper’s pre-filing notice. As the Board
                                              NPRM, including the establishment of                    AAR argues that the Board’s ex parte                  noted in the NPRM, the goal of the
                                              ground rules, issue-specific Board                      regulations do not require that ‘‘all                 liaison is to increase staff involvement
                                              expectations, and a point of contact for                communications’’ be joint ones because                at all stages of a rate cases, which would
                                              questions about the process, could                      the ex parte regulations bar only                     begin with the newly created pre-
                                              prove to be extremely useful to grain                   communications ‘‘concerning the merits                complaint period. The Board does not
                                              and other agricultural shippers in the                  of the proceeding.’’ (AAR NPRM Reply                  agree with Coal Shippers/NARUC that
                                              event such a case is filed. (NGFA NPRM                  4.) AAR states that to effectively and                the appointment of a liaison would
                                              Comments 6.)                                            efficiently manage rate cases, the staff              cause confusion with the mediator. The
                                                 Coal Shippers/NARUC also generally                   liaison occasionally may need to                      liaison and mediator will be clearly
                                              support the Board’s proposal for                        communicate separately with parties on                identified and distinct individuals, and
                                              increased staff involvement in rate                     procedural issues, and such                           the liaison will not participate in the
                                              cases, but suggest two modifications.                   communications violate neither the ex                 mediation.15
                                              (See Coal Shippers/NARUC NPRM                           parte rules nor the rules’ purpose of                    However, the Board will clarify that
                                              Comments 39.) First, Coal Shippers/                     safeguarding due process. (Id.)                       the liaison would be required to comply
                                              NARUC argue that the Board should                          AAR supports increased use of                      with the Board’s ex parte regulations.
                                              appoint the liaison after the shipper                   written questions and technical                       See 49 CFR 1102.2; see also Ex Parte
                                              files its complaint. (Coal Shippers/                    conferences and the appointment a staff               Commc’ns in Informal Rulemaking
                                              NARUC NPRM Reply 23.) According to                      liaison to a rate case; however, AAR                  Proceedings, EP 739 (STB served Sept.
                                              Coal Shippers/NARUC, there is no need                   asks the Board to clarify that the staff              28, 2017) (proposing modifications to
                                              for the Board to appoint a staff liaison                liaison and the appointed mediator                    the Board’s ex parte regulations in
                                              during the mediation period, and the                    would be two separate individuals.                    informal rulemaking proceedings). See
                                              appointment itself could cause                          (AAR NPRM Comments 6; AAR NPRM                        82 FR 45771 (Oct. 2, 2017). The Board
                                              confusion because the Board’s rules call                Reply 3–4.) AAR further suggests the                  is committed to ensuring that rate case
                                              for the mediator to supervise the parties’              Board modify its regulations to delegate              proceedings, including the new liaison
                                              mediation, not the liaison. (Coal                       to the liaison the authority to convene               role, are conducted in a transparent and
                                              Shippers/NARUC NPRM Comments 26.)                       a technical conference and to rule on                 fair manner. Coal Shippers/NARUC
                                              NGFA, however, disagrees, arguing that                  issues raised in such conferences. (AAR               have not provided any reason to believe
                                              appointment of a liaison should be                      NPRM Comments 6.) According to AAR,                   that the Board’s regulations would be
                                              made during the pre-filing phase to                     this modification would enable the                    ineffective; therefore, the Board finds no
                                              assist those parties that may be new to                 liaison to facilitate negotiation among               reason to expand its ex parte restrictions
                                              or unfamiliar with the rate-complaint                   the parties while still providing a clear             in rate case proceedings as suggested by
                                              process. (NGFA NPRM Reply 4–5.)                         path for Board oversight, as the liaison’s            Coal Shippers/NARUC.
                                                 Second, Coal Shippers/NARUC                          rulings would be subject to the appellate                Additionally, AAR’s suggestion that
                                              request the Board clarify that the parties              standards for interlocutory appeals                   the Board delegate to the liaison the
                                              and the liaison must abide by the                       under 49 CFR 1115.9(b). (Id.) ACC, TFI,               authority to rule on issues exceeds the
                                              Board’s rules governing ex parte                        and NITL do not endorse AAR’s                         intended scope of the liaison’s role. As
                                              communications. (Coal Shippers/                         suggestion, arguing that if the Board                 noted in the NPRM, the liaison is
                                              NARUC NPRM Comments 27.)                                were to adopt such a change, it should                intended to ‘‘answer questions about the
                                              Specifically, Coal Shippers/NARUC                       provide details in a subsequent                       process and to intervene informally
                                              argue: (1) The liaison should be free to                rulemaking for public comment and any                 (e.g., hold status conferences) if it would
                                              engage in joint communications with                     such proposal should address the                      help discovery or other matters move
                                              counsel for the parties as is done in                   division of responsibility between the                more smoothly.’’ NPRM, EP 733, slip op.
                                              technical conferences; (2) while it may                 liaison and administrative law judges.                at 9. The liaison’s role would be to work
                                              not be necessary for the liaison to                     (ACC, TFI, & NITL NPRM Reply 4.) Coal                 with parties to help primarily with
                                              convene joint meetings at all times, all                Shippers/NARUC likewise object to                     procedural issues that arise through the
                                              communications between the liaison                      AAR’s proposal, arguing that it would                 processing of a rate case.16
                                              and any of the parties to a case (e.g.,                 delay Board consideration of rate cases                  Additional Comments. In addition to
                                              letters, emails, and phone discussions)                 and turn informal technical conferences               commenting on these specific proposals,
                                              should be joint ones (e.g., conference                  into formal adversarial proceedings.                  some parties have also raised more
                                              calls where both parties participate,                   (Coal Shippers/NARUC NPRM Reply 5,                    general comments on how the Board
                                              written communications copied to all                    25.) Coal Shippers/NARUC also note                    could expedite rate cases. AAR notes
                                              parties, etc.); and (3) unless the parties              that AAR’s proposal is at odds with the               certain internal reforms that could aid
                                              otherwise agree, the parties should not                 role the Board envisioned the liaison                 the Board in expediting rate case
                                              be permitted to address the merits of the               would perform. (Id. at 25 (citing NRPM,
                                              case (or case evidence) with the liaison                EP 733, slip op. at 9 (the function of the              15 Because the liaison would not participate in the

                                              and the liaison should not be permitted                                                                       mediation, the liaison would not be recused from
                                                                                                      liaison is ‘‘to answer questions about the
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                                                                                                                                                            handling substantive elements of the case.
                                              to address the merits of the case (or case              process and to intervene informally                     16 The Board also notes that its regulations
                                              evidence) with the parties. (Id. at 27–28;              (e.g., hold status conferences) if it would           already include mechanisms to expedite resolution
                                              Coal Shippers/NARUC NPRM Reply                          help discovery or other matters move                  of some issues. See, e.g., 49 CFR 1011.6(c)(3)
                                              23.)                                                    more smoothly’’).))                                   (delegating to the Director of the Board’s Office of
                                                                                                                                                            Proceedings, among other things, the authority to
                                                 UP argues that the ex parte                             The Board will adopt the proposal in               dispose of routine procedural matters in
                                              restrictions proposed by Coal Shippers/                 the NPRM. The Board continues to                      proceedings assigned for handling under modified
                                              NARUC are vague, would have a                           believe that increased communication                  procedure).



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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                         57377

                                              litigation without the need for changes                 take steps in preparation for litigation              modified discovery requests affected by
                                              to the Board’s rules. (AAR NPRM                         before the filing of the complaint.                   the amended or supplemental
                                              Comments 10.) Specifically, AAR cites                      1. Pre-filing Notice. The Board creates            complaint, if any. The Board will adopt
                                              to five recommendations of the Institute                a pre-complaint period in a new 49 CFR                a corresponding requirement at 49 CFR
                                              for the Advancement of the American                     1111.1 by requiring a SAC complainant                 1111.5(f), in which a defendant
                                              Legal System at the University of                       to submit a pre-filing notice at least 70             responding to an amended or
                                              Denver: (1) Setting firm dates early in                 days prior to filing its complaint.17 The             supplemental complaint must certify
                                              the pretrial process for the close of                   pre-filing notice shall contain the rate              that it has served on the complainant
                                              discovery, the filing of dispositive                    and origin/destination pair(s) to be                  any new or modified discovery requests
                                              motions, and trial, and maintaining                     challenged, the commodities at issue,                 affected by the amended or
                                              those dates except in rare and truly                    and a motion for protective order                     supplemental complaint, if any.
                                              unusual circumstances; (2) ruling                       pursuant to newly created 49 CFR                         2. Meet-and-Confer Requirement. The
                                              expeditiously on motions, even when                     1104.14(c).                                           Board will amend 49 CFR 1114.31(a)(2)
                                              the motions are denied; (3) limiting the                   2. Mandatory Mediation. The Board                  to require that all motions to compel in
                                              number of extensions sought by the                      revises 49 CFR 1109.4 to move                         SAC cases and cases filed under
                                              parties during any phase of the case; (4)               mandatory mediation in SAC cases to                   simplified standards include a
                                              working to foster a local legal culture                 the pre-complaint period. This change                 certification that the party filing the
                                              that accepts efficient case processing as               to the regulations would not impose                   motion has in good faith conferred or
                                              the norm, and enforcing that culture                    new requirements but would require                    attempted to confer with the party
                                              through active judicial case                            mediation to take place earlier to allow              failing to answer discovery to settle the
                                              management; and (5) tracking the status                 parties to focus on the mediation                     dispute over those terms without Board
                                              of cases and motions through internal                   process without the distractions of fully             intervention.
                                              statistical reporting, and disseminating                active litigation. The Board intends for                 Evidentiary Submissions. The final
                                              the results internally and externally as                mediation to be complete prior to the                 rule includes changes to the Board’s
                                              appropriate. (AAR NPRM Comments 8,                      filing of the complaint; however,                     regulations governing the submission of
                                              8 n.28. (citing Civil Case Processing in                consistent with current procedures, the               evidence intended to improve and
                                              the Federal District Courts, Inst. for the              rules will allow for an extension of time             expedite the presentation of evidence in
                                              Advancement of the Am. Legal Sys.                       via Board order. Additionally, the Board              rate cases.
                                              9–10 (2009), http://www.uscourts.gov/                   revises its regulations to provide that it               1. Stagger the Submission of Public
                                              sites/default/files/iaals_civil_case_                   will assign one or more mediators to a                and Highly Confidential Versions of
                                              processing_in_the_federal_district_                     case within 5 business days after the                 Filings. In both SAC and simplified
                                              courts_0.pdf).) ACC, TFI, and NITL                      shipper submits its pre-filing notice                 standards cases, the Board will allow
                                              similarly argue that the Board should                   (rather than the 10-business day period               parties to submit non-public (e.g.,
                                              enforce deadlines for completing                        currently in place).                                  confidential, highly confidential)
                                              discovery and grant extensions of time                     3. Appointment of a Board Liaison to               versions of the filings according to the
                                              only in extraordinary circumstances and                 the Parties. The Board will require the               procedural schedule in a particular case,
                                              for the shortest possible time. (ACC,                   appointment of a liaison to the parties               and submit public versions of those
                                              TFI, & NITL NPRM Reply 9.) The Board                    within 10 business days of the                        filings within three business days after
                                              appreciates that the parties offered these              complainant’s submission of the pre-                  the filing of the non-public versions.
                                              additional recommendations. The Board                   filing notice in SAC cases pursuant to                   2. Standard Convention for
                                              is committed to processing rate cases as                new 49 CFR 1111.1(b) and in cases                     Identifying Confidential, Highly
                                              expeditiously as possible, and agrees                   using simplified standards pursuant to                Confidential, and Sensitive Security
                                              that it is important to timely rule on                  newly redesignated 49 CFR 1111.10(a).                 Information. The Board will revise 49
                                              motions and grant extensions of time                       Discovery. The final rule also includes            CFR 1104.14 to create standard
                                              judiciously.                                            changes to the Board’s discovery                      identifying markers set forth in
                                                                                                      regulations intended to streamline                    protective orders for the submission of
                                              The Final Rule                                                                                                confidential, highly confidential, and
                                                                                                      discovery in rate cases.
                                                 The final rule adopted by the Board                     1. Initial Discovery Requests. The                 sensitive security information in rate
                                              here contains changes to the Board’s                    Board will add 49 CFR 1111.2(f) and                   cases. The standard identifying markers
                                              regulations at 49 CFR parts 1104, 1109,                 amend 49 CFR 1114.21(d) & (f) to                      are as follows: All confidential
                                              1111, 1114, and 1130, which are set out                 require a complainant in a SAC                        information will be contained in single
                                              below. The final rule would amend the                   proceeding to certify that it has served              braces, i.e., {X}, all highly confidential
                                              existing procedures for filing and                      its initial discovery requests                        information will be contained in double
                                              litigating a rate case, as directed by                  simultaneously with its complaint. The                braces, i.e., {{Y}}, and all sensitive
                                              section 11 of the STB Reauthorization                   Board also will add 49 CFR 1111.5(f)                  security information will be contained
                                              Act. While the rules adopted here are                   and amend 49 CFR 1114.21(d) & (f) to                  in triple braces, i.e., {{{Z}}}.
                                              largely in response to section 11 of the                require a defendant in a SAC proceeding                  3. Limits on Final Briefs. The Board
                                              STB Reauthorization Act, the Board                      to certify that it has served its initial             will limit the length of final briefs to 30
                                              intends to continue to review its rate                  discovery requests simultaneously with                pages, inclusive of exhibits, in SAC and
                                              regulations so that it may propose                      its answer. To address the filing of an               Simplified-SAC cases.
                                              additional improvements to its rate                                                                              Technical Modifications. The Board
                                                                                                      amended or supplemental complaint,
                                              review process in a subsequent                                                                                adopts two technical modifications to
                                                                                                      the Board will amend the newly
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                                              rulemaking proceeding.                                                                                        the existing regulations. Specifically,
                                                                                                      redesignated 49 CFR 1111.3(b) to
                                                 Pre-Complaint Period. The final rule                                                                       the Board will amend the newly
                                                                                                      require the complainant to certify that it
                                              includes changes creating and detailing                                                                       redesignated 49 CFR 1111.11(b)
                                                                                                      has served on the defendant any new or
                                              a pre-complaint period in SAC cases,                                                                          (requiring parties to meet at the
                                              which is intended to provide parties an                   17 To accommodate the new § 1111.1, the existing    beginning of the case to discuss
                                              opportunity to mediate the dispute free                 §§ 1111.1–1111.10 will be redesignated as             procedural matters) to clarify that its
                                              from the distraction of litigation and                  §§ 1111.2–1111.11.                                    requirements also apply to SAC cases.


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                                              57378             Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              The Board also will amend 49 CFR                           proposed rules, if promulgated, would                List of Subjects
                                              1130.1 to include the correct reference                    not have a significant economic impact
                                                                                                                                                              49 CFR Part 1104
                                              to the newly redesignated 49 CFR                           on a substantial number of small entities
                                              1111.2(a).                                                 within the meaning of the RFA.                         Administrative practice and
                                                 Regulatory Flexibility Act. The                            The final rule adopted here revises               procedure.
                                              Regulatory Flexibility Act of 1980                         the rules proposed in the NPRM;                      49 CFR Part 1109
                                              (RFA), 5 U.S.C. 601–612, generally                         however, the same basis for the Board’s
                                              requires a description and analysis of                                                                            Administrative practice and
                                                                                                         certification of the proposed rule                   procedure, Maritime carriers, Motor
                                              new rules that would have a significant                    applies to the final rule. The final rule
                                              economic impact on a substantial                                                                                carriers, Railroads.
                                                                                                         will not create a significant impact on
                                              number of small entities. In drafting a                    a substantial number of small entities,              49 CFR Part 1111
                                              rule, an agency is required to: (1) Assess                 as the regulations do not mandate or
                                              the effect that its regulation will have on                                                                       Administrative practice and
                                                                                                         circumscribe the conduct of small                    procedure, Investigations.
                                              small entities; (2) analyze effective                      entities. Thus, the Board again certifies
                                              alternatives that may minimize a                           under 5 U.S.C. 605(b) that the final rule            49 CFR Part 1114
                                              regulation’s impact; and (3) make the                      will not have a significant economic                   Administrative practice and
                                              analysis available for public comment.                     impact on a substantial number of small              procedure.
                                              Sections 601–604. In its final rule, the                   entities within the meaning of the RFA.
                                              agency must either include an initial                                                                           49 CFR Part 1130
                                                                                                         A copy of this decision will be served
                                              regulatory flexibility analysis, section                   upon the Chief Counsel for Advocacy,                   Administrative practice and
                                              603(a), or certify that the proposed rule                  Office of Advocacy, U.S. Small Business              procedure.
                                              would not have a ‘‘significant impact on                   Administration, Washington, DC 20416.                  Decided: November 29, 2017.
                                              a substantial number of small entities,’’                                                                         By the Board, Board Members Begeman
                                              section 605(b). The impact must be a                          Paperwork Reduction Act. In this
                                                                                                         proceeding, the Board is modifying an                and Miller.
                                              direct impact on small entities ‘‘whose                                                                         Jeffrey Herzig,
                                              conduct is circumscribed or mandated’’                     existing collection of information that is
                                                                                                         currently approved by the Office of                  Clearance Clerk.
                                              by the proposed rule. White Eagle Coop.                                                                           For the reasons set forth in the
                                              v. Conner, 553 F.3d 467, 480 (7th Cir.                     Management and Budget (OMB) through
                                                                                                         May 31, 2020, under OMB Control No.                  preamble, the Surface Transportation
                                              2009).                                                                                                          Board amends title 49, chapter X, parts
                                                 In the NPRM, the Board certified                        2140–0029. In the NPRM, the Board
                                                                                                         sought comments pursuant to the                      1104, 1109, 1111, 1114, and 1130 of the
                                              under 5 U.S.C. 605(b) that the proposed
                                                                                                         Paperwork Reduction Act (PRA), 44                    Code of Federal Regulations as follows:
                                              rule would not have a significant
                                              economic impact on a substantial                           U.S.C. 3501–3549, and Office of
                                                                                                         Management and Budget (OMB)                          PART 1104—FILING WITH THE
                                              number of small entities within the                                                                             BOARD-COPIES-VERIFICATION-
                                              meaning of the RFA.18 The Board                            regulations at 5 CFR 1320.8(d)(3)
                                                                                                                                                              SERVICE-PLEADINGS, GENERALLY
                                              explained that the proposed changes to                     regarding: (1) Whether the collection of
                                              its regulations would not mandate or                       information, as modified in the                      ■  1. The authority citation for part 1104
                                              circumscribe the conduct of small                          proposed rule and further described                  is revised to read as follows:
                                              entities. Rather, the changes proposed                     below, is necessary for the proper
                                                                                                                                                                Authority: 5.U.S.C. 553 and 559; 18 U.S.C.
                                              would be largely procedural or would                       performance of the functions of the                  1621; and 49 U.S.C. 1321.
                                              codify existing practice, and would not                    Board, including whether the collection
                                                                                                         has practical utility; (2) the accuracy of           ■ 2. In § 1104.14, add paragraph (c) to
                                              have a significant economic impact on                                                                           read as follows:
                                              small entities. Additionally, the Board                    the Board’s burden estimates; (3) ways
                                              noted that, since the inception of the                     to enhance the quality, utility, and                 § 1104.14 Protective orders to maintain
                                              Board in 1996, only three of the 51 filed                  clarity of the information collected; and            confidentiality.
                                              cases challenging the reasonableness of                    (4) ways to minimize the burden of the               *     *      *     *    *
                                              freight rail rates involved a Class III rail               collection of information on the                       (c) Requests for protective orders in
                                              carrier as a defendant. Those three cases                  respondents, including the use of                    stand-alone cost and simplified
                                              involved a total of 13 Class III rail                      automated collection techniques or                   standards cases. A motion for protective
                                              carriers. The Board estimated that there                   other forms of information technology,               order in stand-alone cost and simplified
                                              are approximately 656 Class III rail                       when appropriate. No comments were                   standards cases shall specify that
                                              carriers. Therefore, the Board certified                   received pertaining to the collection of             evidentiary submissions will designate
                                              under 5 U.S.C. 605(b) that these                           this information under the PRA.                      confidential material within single
                                                                                                            This modification to an existing                  braces (i.e., {X}), highly confidential
                                                 18 Effective June 30, 2016, for the purpose of RFA      collection will be submitted to OMB for              material within double braces (i.e.,
                                              analysis for rail carriers subject to Board                review as required under the PRA, 44                 {{Y}}), and sensitive security
                                              jurisdiction, the Board defines a ‘‘small business’’       U.S.C. 3507(d), and 5 CFR 1320.11.                   information within triple braces (i.e.,
                                              as only those rail carriers classified as Class III rail
                                              carriers under 49 CFR 1201.1–1. See Small Entity              It is ordered:                                    {{{Z}}}). In stand-alone cost cases, the
                                              Size Standards Under the Regulatory Flexibility               1. The Board adopts the final rule as             motion for protective order shall be filed
                                              Act, EP 719 (STB served June 30, 2016) (with Board                                                              together with the notice pursuant to 49
                                              Member Begeman dissenting). See 81 FR 42566                set forth in this decision. Notice of the
                                                                                                         adopted rule will be published in the                CFR 1111.1.
                                              (June 30, 2016). Class III carriers have annual
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                                              operating revenues of $20 million or less in 1991          Federal Register.
                                              dollars, or $35,809,698 or less when adjusted for                                                               PART 1109—USE OF MEDIATION IN
                                              inflation using 2016 data. Class II rail carriers have
                                                                                                            2. This decision is effective December            BOARD PROCEEDINGS
                                              annual operating revenues of less than $250 million        30, 2017.
                                              in 1991 dollars or less than $447,621,226 when                3. A copy of this decision will be                ■  3. The authority citation for part 1109
                                              adjusted for inflation using 2016 data. The Board                                                               is revised to read as follows:
                                              calculates the revenue deflator factor annually and
                                                                                                         served upon the Chief Counsel for
                                              publishes the railroad revenue thresholds on its           Advocacy, Office of Advocacy, U.S.                     Authority: 49 U.S.C. 1321(a) and 5 U.S.C.
                                              Web site. 49 CFR 1201.1–1.                                 Small Business Administration.                       571 et seq.



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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                       57379

                                              ■ 4. In § 1109.4, revise paragraphs (a),                   (4) Include a motion for protective                documents relied upon to determine the
                                              (b), and (g) to read as follows:                        order as set forth at 49 CFR 1104.14(c).              inputs to the URCS Phase III program.
                                                                                                         (b) Liaison. Within 10 days of the                   (c) Multiple causes of action. Two or
                                              § 1109.4 Mandatory mediation in rate                    filing of the pre-filing notice, the Board            more grounds of complaint concerning
                                              cases to be considered under the stand-
                                              alone cost methodology.                                 shall appoint a liaison to the parties.               the same principle, subject, or statement
                                                                                                                                                            of facts may be included in one
                                                 (a) Mandatory use of mediation. A                    § 1111.2    Content of formal complaints;             complaint, but should be stated and
                                              shipper seeking rate relief from a                      joinder.
                                                                                                                                                            numbered separately.
                                              railroad or railroads in a case involving                  (a) General. A formal complaint must                 (d) Joinder. Two or more
                                              the stand-alone cost methodology must                   contain the correct, unabbreviated                    complainants may join in one complaint
                                              engage in non-binding mediation of its                  names and addresses of each                           against one or more defendants if their
                                              dispute with the railroad upon                          complainant and defendant. It should                  respective causes of action concern
                                              submitting a pre-filing notice under 49                 set forth briefly and in plain language               substantially the same alleged violations
                                              CFR part 1111.                                          the facts upon which it is based. It                  and like facts.
                                                 (b) Assignment of mediators. Within 5                should include specific reference to                    (e) Request for access to waybill data.
                                              business days after the shipper submits                 pertinent statutory provisions and Board              Parties needing access to the Waybill
                                              its pre-filing notice, the Board will                   regulations, and should advise the                    Sample to prepare their case should
                                              assign one or more mediators to the                     Board and the defendant fully in what                 follow the procedures set forth at 49
                                              case. Within 5 business days of the                     respects these provisions or regulations              CFR 1244.9.
                                              assignment to mediate, the mediator(s)                  have been violated. The complaint                       (f) Discovery in stand-alone cost
                                              shall contact the parties to discuss                    should contain a detailed statement of                cases. Upon filing its complaint, the
                                              ground rules and the time and location                  the relief requested. Relief in the                   complainant shall certify that it has
                                              of any meeting.                                         alternative or of several different types             served its initial discovery requests on
                                              *      *     *     *     *                              may be demanded, but the issues raised                the defendant.
                                                 (g) Procedural schedule. Absent a                    in the formal complaint should not be
                                              specific order from the Board granting                  broader than those to which                           § 1111.3 Amended and supplemental
                                              an extension, the mediation will not                    complainant’s evidence is to be                       complaints.
                                              affect the procedural schedule in stand-                directed. In a complaint challenging the                 (a) Generally. An amended or
                                              alone cost rate cases set forth at 49 CFR               reasonableness of a rail rate, the                    supplemental complaint may be
                                              1111.9(a).                                              complainant should indicate whether,                  tendered for filing by a complainant
                                              ■ 5. Part 1111 is revised to read as                    in its view, the reasonableness of the                against a defendant or defendants
                                              follows:                                                rate should be examined using                         named in the original complaint, stating
                                                                                                      constrained market pricing or using the               a cause of action alleged to have accrued
                                              PART 1111—COMPLAINT AND                                 simplified standards adopted pursuant                 within the statutory period immediately
                                              INVESTIGATION PROCEDURES                                to 49 U.S.C. 10701(d)(3). If the                      preceding the date of such tender, in
                                                                                                      complainant seeks to use the simplified               favor of complainant and against the
                                              Sec.
                                              1111.1 Pre-filing procedures in stand-alone             standards, it should support this request             defendant or defendants. The time
                                                   cost cases.                                        by submitting, at a minimum, the                      limits for responding to an amended or
                                              1111.2 Content of formal complaints;                    following information:                                supplemental complaint are computed
                                                   joinder.                                              (1) The carrier or region identifier.              pursuant to §§ 1111.5 and 1111.6, as if
                                              1111.3 Amended and supplemental                            (2) The type of shipment (local,                   the amended or supplemental complaint
                                                   complaints.                                        received-terminated, etc.).                           was an original complaint.
                                              1111.4 Service.                                            (3) The one-way distance of the                       (b) Stand-alone cost. If a complainant
                                              1111.5 Answers and cross complaints.
                                              1111.6 Motions to dismiss or to make more               shipment.                                             tenders an amended or supplemental
                                                   definite.                                             (4) The type of car (by URCS code).                complaint in a stand-alone cost case, the
                                              1111.7 Satisfaction of complaint.                          (5) The number of cars.                            complainant shall certify that it has
                                              1111.8 Investigations on the Board’s own                   (6) The car ownership (private or                  served on the defendant those initial
                                                   motion.                                            railroad).                                            discovery requests affected by the
                                              1111.9 Procedural schedule in stand-alone                  (7) The commodity type (STCC code).                amended or supplemental complaint, if
                                                   cost cases.                                           (8) The weight of the shipment (in                 any.
                                              1111.10 Procedural schedule in cases using              tons per car).                                           (c) Simplified standards. A complaint
                                                   simplified standards.                                 (9) The type of movement (individual,
                                              1111.11 Meeting to discuss procedural                                                                         filed under the simplified standards
                                                   matters.                                           multi-car, or unit train).                            may be amended once before the filing
                                                                                                         (10) A narrative addressing whether                of opening evidence to opt for a
                                                Authority: 49 U.S.C. 10704, 11701, and                there is any feasible transportation
                                              1321.
                                                                                                                                                            different rate reasonableness
                                                                                                      alternative for the challenged                        methodology, among Three-Benchmark,
                                              § 1111.1 Pre-filing procedures in stand-                movements.                                            Simplified-SAC, or Full-SAC. If so
                                              alone cost cases.                                          (11) For matters for which voluntary,              amended, the procedural schedule
                                                (a) General. At least 70 days prior to                binding arbitration is available pursuant             begins again under the new
                                              the proposed filing of a complaint                      to 49 CFR part 1108, the complaint shall              methodology as set forth at §§ 1111.9
                                              challenging the reasonableness of a rail                state that arbitration was considered,                and 1111.10. However, only one
                                              rate based on stand-alone cost,                         but rejected, as a means of resolving the             mediation period per complaint shall be
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                                              complainant shall file a notice with the                dispute.                                              required.
                                              Board. The notice shall:                                   (b) Disclosure with simplified
                                                (1) Identify the rate to be challenged;               standards complaint. The complainant                  § 1111.4   Service.
                                                (2) Identify the origin/destination                   must provide to the defendant all                       A complainant is responsible for
                                              pair(s) to be challenged;                               documents relied upon in formulating                  serving formal complaints, amended or
                                                (3) Identify the affected commodities;                its assessment of a feasible                          supplemental complaints, and cross
                                              and                                                     transportation alternative and all                    complaints on the defendant(s). Service


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                                              57380            Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              shall be made by sending a copy of such                    (c) Time for filing; copies; service. An           Board’s own motion will be served by
                                              complaint to the chief legal officer of                 answer must be filed within 20 days                   the Board upon respondents.
                                              each defendant by either confirmed                      after the service of the complaint or                   (b) Default. If within the time period
                                              facsimile and first-class mail or express               within such additional time as the                    stated in the decision instituting an
                                              overnight courier. The cover page of                    Board may provide. The original and 10                investigation, a respondent fails to
                                              each such facsimile and the front of                    copies of an answer must be filed with                comply with any requirement specified
                                              each such first-class mail or overnight                 the Board. The defendant must serve                   in the decision, the respondent will be
                                              express courier envelope shall include                  copies of the answer upon the                         deemed in default and to have waived
                                              the following legend: ‘‘Service of STB                  complainant and any other defendants.                 any further proceedings, and the
                                              Complaint’’. Service of the complaint                      (d) Cross complaints. A cross                      investigation may be decided forthwith.
                                              shall be deemed completed on the date                   complaint alleging violations by other
                                                                                                      parties to the proceeding or seeking                  § 1111.9 Procedural schedule in stand-
                                              on which the complaint is served by
                                                                                                      relief against them may be filed with the             alone cost cases.
                                              confirmed facsimile or, if service is
                                              made by express overnight courier, on                   answer. An answer to a cross complaint                   (a) Procedural schedule. Absent a
                                              the date such complaint is actually                     shall be filed within 20 days after the               specific order by the Board, the
                                              received by the defendant. When the                     service date of the cross complaint. The              following general procedural schedule
                                              complaint involves more than one                        party shall serve copies of an answer to              will apply in stand-alone cost cases after
                                              defendant, service of the complaint                     a cross complaint upon the other                      the pre-complaint period initiated by
                                              shall be deemed completed on the date                   parties.                                              the pre-filing notice:
                                              on which all defendants have been                          (e) Failure to answer complaint.                      (1) Day 0—Complaint filed, discovery
                                              served. An original and ten copies of the               Averments in a complaint are admitted                 period begins.
                                                                                                      when not denied in an answer to the                      (2) Day 7 or before—Conference of the
                                              complaint should be filed with the
                                                                                                      complaint.                                            parties convened pursuant to
                                              Board together with an acknowledgment
                                                                                                         (f) Discovery in stand-alone cost                  § 1111.11(b).
                                              of service by the persons served or proof
                                                                                                      cases. Upon filing its answer, the                       (3) Day 20—Defendant’s answer to
                                              of service in the form of a statement of
                                                                                                      defendant shall certify that it has served            complaint due.
                                              the date and manner of service, of the
                                                                                                      its initial discovery requests on the                    (4) Day 150—Discovery completed.
                                              names of the persons served, and of the                                                                          (5) Day 210—Complainant files
                                                                                                      complainant. If the complainant tenders
                                              addresses to which the papers were                                                                            opening evidence on absence of
                                                                                                      an amended or supplemental complaint
                                              mailed or at which they were delivered,                                                                       intermodal and intramodal competition,
                                                                                                      to which the defendant must reply,
                                              certified by the person who made                                                                              variable cost, and stand-alone cost
                                                                                                      upon filing the answer to the amended
                                              service. If complainant cannot serve the                                                                      issues.
                                                                                                      or supplemental complaint, the
                                              complaint, an original of each complaint                                                                         (6) Day 270—Defendant files reply
                                                                                                      defendant shall certify that it has served
                                              accompanied by a sufficient number of                                                                         evidence to complainant’s opening
                                                                                                      on the complainant those initial
                                              copies to enable the Board to serve one                 discovery requests affected by the                    evidence.
                                              upon each defendant and to retain 10                    amended or supplemental complaint, if                    (7) Day 305—Complainant files
                                              copies in addition to the original should               any.                                                  rebuttal evidence to defendant’s reply
                                              be filed with the Board.                                                                                      evidence.
                                                                                                      § 1111.6 Motions to dismiss or to make                   (8) Day 335—Complainant and
                                              § 1111.5   Answers and cross complaints.                more definite.
                                                                                                                                                            defendant file final briefs.
                                                (a) Generally. An answer shall be filed                  An answer to a complaint or cross                     (9) Day 485 or before—The Board
                                              within the time provided in paragraph                   complaint may be accompanied by a                     issues its decision.
                                              (c) of this section. An answer should be                motion to dismiss the complaint or                       (b) Staggered filings; final briefs. (1)
                                              responsive to the complaint and should                  cross complaint or a motion to make the               The parties may submit non-public (e.g.,
                                              fully advise the Board and the parties of               complaint or cross complaint more                     confidential, highly confidential)
                                              the nature of the defense. In answering                 definite. A motion to dismiss can be                  versions of filings on the dates
                                              a complaint challenging the                             filed at anytime during a proceeding. A               identified in the procedural schedule,
                                              reasonableness of a rail rate, the                      complainant or cross complainant may,                 and submit public versions of those
                                              defendant should indicate whether it                    within 10 days after an answer is filed,              filings within three business days
                                              will contend that the Board is deprived                 file a motion to make the answer more                 thereafter.
                                              of jurisdiction to hear the complaint                   definite. Any motion to make more                        (2) Final briefs are limited to 30 pages,
                                              because the revenue-variable cost                       definite must specify the defects in the              inclusive of exhibits.
                                              percentage generated by the traffic is                  particular pleading and must describe                    (c) Conferences with parties. (1) The
                                              less than 180 percent, or the traffic is                fully the additional information or                   Board will convene a technical
                                              subject to effective product or                         details thought to be necessary.                      conference of the parties with Board
                                              geographic competition. In response to                                                                        staff prior to the filing of any evidence
                                                                                                      § 1111.7    Satisfaction of complaint.
                                              a complaint filed under the simplified                                                                        in a stand-alone cost rate case, for the
                                              standards, the answer must include the                    If a defendant satisfies a formal
                                                                                                      complaint, either before or after                     purpose of reaching agreement on the
                                              defendant’s preliminary estimate of the                                                                       operating characteristics that are used in
                                              variable cost of each challenged                        answering, a statement to that effect
                                                                                                      signed by the complainant must be filed               the variable cost calculations for the
                                              movement calculated using the                                                                                 movements at issue. The parties should
                                              unadjusted figures produced by the                      (original only need be filed), setting
                                                                                                      forth when and how the complaint has                  jointly propose a schedule for this
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                                              URCS Phase III program.                                                                                       technical conference.
                                                                                                      been satisfied. This action should be
                                                 (b) Disclosure with simplified                       taken as expeditiously as possible.                      (2) In addition, the Board may
                                              standards answer. The defendant must                                                                          convene a conference of the parties with
                                              provide to the complainant all                          § 1111.8 Investigations on the Board’s                Board staff, after discovery requests are
                                              documents that it relied upon to                        own motion.                                           served but before any motions to compel
                                              determine the inputs used in the URCS                     (a) Service of decision. A decision                 may be filed, to discuss discovery
                                              Phase III program.                                      instituting an investigation on the                   matters in stand-alone cost rate cases.


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                                                               Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations                                             57381

                                              The parties should jointly propose a                       (2) In cases relying upon the                      simplified standards, the parties shall
                                              schedule for this discovery conference.                 Simplified-SAC methodology, final                     meet, or discuss by telephone or
                                                                                                      briefs are limited to 30 pages, inclusive             through email, discovery and
                                              § 1111.10 Procedural schedule in cases                  of exhibits.                                          procedural matters within 7 days after
                                              using simplified standards.
                                                                                                         (c) Defendant’s second disclosure. In              the complaint is filed in stand-alone
                                                 (a) Procedural schedule. Absent a                    cases using the Simplified–SAC                        cost cases, and 7 days after the
                                              specific order by the Board, the                        methodology, the defendant must make                  mediation period ends in simplified
                                              following general procedural schedules                  the following disclosures to the                      standards cases. The parties should
                                              will apply in cases using the simplified                complainant by Day 170 of the                         inform the Board as soon as possible
                                              standards:                                              procedural schedule.                                  thereafter whether there are unresolved
                                                 (1)(i) In cases relying upon the                        (1) Identification of all traffic that             disputes that require Board intervention
                                              Simplified-SAC methodology:                             moved over the routes replicated by the               and, if so, the nature of such disputes.
                                                 (A) Day 0—Complaint filed (including                 SARR in the Test Year.
                                              complainant’s disclosure).                                 (2) Information about those                        PART 1114—EVIDENCE; DISCOVERY
                                                 (B) Day 10—Mediation begins.                         movements, in electronic format,
                                                 (C) Day 20—Defendant’s answer to                                                                           ■  6. The authority citation for part 1114
                                                                                                      aggregated by origin-destination pair
                                              complaint (including defendant’s initial                                                                      is revised to read as follows:
                                                                                                      and shipper, showing the origin,
                                              disclosure).                                            destination, volume, and total revenues                   Authority: 5 U.S.C. 559; 49 U.S.C. 1321.
                                                 (D) Day 30—Mediation ends;                           from each movement.                                   ■ 7. In § 1114.21, revise paragraph (d)
                                              discovery begins.                                          (3) Total operating and equipment                  and the first sentence of paragraph (f) to
                                                 (E) Day 140—Defendant’s second                       cost calculations for each of those                   read as follows:
                                              disclosure.                                             movements, provided in electronic
                                                 (F) Day 150—Discovery closes.                                                                              § 1114.21 Applicability; general
                                                                                                      format.                                               provisions.
                                                 (G) Day 220—Opening evidence.                           (4) Revenue allocation for the on–
                                                 (H) Day 280—Reply evidence.                          SARR portion of each cross-over                       *     *     *     *     *
                                                 (I) Day 310—Rebuttal evidence.                       movement in the traffic group provided                  (d) Sequence and timing of discovery.
                                                 (J) Day 320—Technical conference                     in electronic format.                                 Unless the Board upon motion, and
                                              (market dominance and merits).                             (5) Total trackage rights payments                 subject to the requirements at 49 CFR
                                                 (K) Day 330—Final briefs.                            paid or received during the Test Year                 1111.2(f) and 1111.5(f) in stand-alone
                                                 (ii) In addition, the Board will appoint             associated with the route replicated by               cost cases, for the convenience of parties
                                              a liaison within 10 business days of the                the SARR.                                             and witnesses and in the interest of
                                              filing of the complaint.                                   (6) All workpapers and                             justice, orders otherwise, methods of
                                                 (2)(i) In cases relying upon the Three-              documentation necessary to support the                discovery may be used in any sequence
                                              Benchmark methodology:                                  calculations.                                         and the fact that a party is conducting
                                                 (A) Day 0—Complaint filed (including                    (d) Conferences with parties. The                  discovery, whether by deposition or
                                              complainant’s disclosure).                              Board may convene a conference of the                 otherwise, should not operate to delay
                                                 (B) Day 10—Mediation begins. (STB                    parties with Board staff to facilitate                any party’s discovery.
                                              production of unmasked Waybill                          voluntary resolution of discovery                     *     *     *     *     *
                                              Sample.)                                                disputes and to address technical issues                (f) Service of discovery materials.
                                                 (C) Day 20—Defendant’s answer to                     that may arise.                                       Unless otherwise ordered by the Board,
                                              complaint (including defendant’s initial                   (e) Complaint filed with a petition to             and subject to the requirements at 49
                                              disclosure).                                            revoke a class exemption. If a complaint              CFR 1111.2(f) and 1111.5(f) in stand-
                                                 (D) Day 30—Mediation ends;                           is filed simultaneously with a petition               alone cost cases, depositions,
                                              discovery begins.                                       to revoke a class exemption, the Board                interrogatories, requests for documents,
                                                 (E) Day 60—Discovery closes.                         will take no action on the complaint and              requests for admissions, and answers
                                                 (F) Day 90—Complainant’s opening                     the procedural schedule will be held in               and responses thereto, shall be served
                                              (initial tender of comparison group and                 abeyance automatically until the                      on other counsel and parties, but shall
                                              opening evidence on market                              petition to revoke is adjudicated.                    not be filed with the Board. * * *
                                              dominance). Defendant’s opening                                                                               ■ 8. In § 1114.31, revise paragraph (a)(2)
                                              (initial tender of comparison group).                   § 1111.11    Meeting to discuss procedural            to read as follows:
                                                 (G) Day 95—Technical conference on                   matters.
                                              comparison group.                                         (a) Generally. In all complaint                     § 1114.31    Failure to respond to discovery.
                                                 (H) Day 120—Parties’ final tenders on                proceedings, other than those                           (a) * * *
                                              comparison group. Defendant’s reply on                  challenging the reasonableness of a rail                (2) Motions to compel in stand-alone
                                              market dominance.                                       rate based on stand-alone cost or the                 cost and simplified standards rate
                                                 (I) Day 150—Parties’ replies to final                simplified standards, the parties shall               cases. (i) Motions to compel in stand-
                                              tenders. Complainant’s rebuttal on                      meet, or discuss by telephone, discovery              alone cost and simplified standards rate
                                              market dominance.                                       and procedural matters within 12 days                 cases must include a certification that
                                                 (ii) In addition, the Board will appoint             after an answer to a complaint is filed.              the movant has in good faith conferred
                                              a liaison within 10 business days of the                Within 19 days after an answer to a                   or attempted to confer with the person
                                              filing of the complaint.                                complaint is filed, the parties, either               or party failing to answer discovery to
                                                 (b) Staggered filings; final briefs. (1)             jointly or separately, shall file a report            obtain it without Board intervention.
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                                              The parties may submit non-public (e.g.,                with the Board setting forth a proposed                 (ii) In a rate case to be considered
                                              confidential, highly confidential)                      procedural schedule to govern future                  under the stand-alone cost or simplified
                                              versions of filings on the dates                        activities and deadlines in the case.                 standards methodologies, a reply to a
                                              identified in the procedural schedule,                     (b) Stand-alone cost or simplified                 motion to compel must be filed with the
                                              and submit public versions of those                     standards complaints. In complaints                   Board within 10 days of when the
                                              filings within three business days                      challenging the reasonableness of a rail              motion to compel is filed.
                                              thereafter.                                             rate based on stand-alone cost or the                 *      *     *     *     *


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                                              57382            Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations

                                              PART 1130—INFORMAL COMPLAINTS                           this notice to advise vessel and dealer               Administrator has determined no longer
                                                                                                      permit holders that Federal commercial                has commercial quota available.
                                              ■  9. The authority citation for part 1130              quota is no longer available to land                  Therefore, effective November 30, 2017,
                                              is revised to read as follows:                          summer flounder in New Jersey.                        landing of summer flounder in New
                                                  Authority: 49 U.S.C. 1321, 13301(f), 14709.         DATES: Effective November 30, 2017                    Jersey by vessels holding summer
                                                                                                      through December 31, 2017.                            flounder commercial Federal fisheries
                                              ■ 10. In § 1130.1, revise paragraph (a) to              FOR FURTHER INFORMATION CONTACT:                      permits is prohibited for the remainder
                                              read as follows:                                        Cynthia Hanson, (978) 281–9180, or                    of the 2017 calendar year, unless
                                              § 1130.1    When no damages sought.                     Cynthia.Hanson@noaa.gov.                              additional quota becomes available
                                                                                                      SUPPLEMENTARY INFORMATION:                            through a transfer and is announced in
                                                (a) Form and content; copies. Informal                                                                      the Federal Register. Effective
                                              complaint may be by letter or other                     Regulations governing the summer
                                                                                                      flounder fishery are found at 50 CFR                  November 30, 2017, federally permitted
                                              writing and will be serially numbered                                                                         dealers are also notified that they may
                                              and filed. The complaint must contain                   part 648. The regulations require annual
                                                                                                      specification of a commercial quota that              not purchase summer flounder from
                                              the essential elements of a formal                                                                            vessels that land in New Jersey for the
                                              complaint as specified at 49 CFR 1111.2                 is apportioned on a percentage basis
                                                                                                      among the coastal states from Maine                   remainder of the calendar year, or until
                                              and may embrace supporting papers.                                                                            additional quota becomes available
                                              The original and one copy must be filed                 through North Carolina. The process to
                                                                                                      set the annual commercial quota and the               through a transfer from another state.
                                              with the Board.
                                                                                                      percent allocated to each state is                    Classification
                                              *     *     *    *    *                                 described in § 648.102.
                                              [FR Doc. 2017–26153 Filed 12–4–17; 8:45 am]
                                                                                                         The coastwide commercial quota for                    This action is required by 50 CFR part
                                              BILLING CODE 4915–01–P
                                                                                                      summer flounder for the 2017 calendar                 648 and is exempt from review under
                                                                                                      year is 5,658,260 lb (2,566,544 kg) (81               Executive Order 12866.
                                                                                                      FR 93842, December 22, 2016). The
                                              DEPARTMENT OF COMMERCE                                                                                           The Assistant Administrator for
                                                                                                      percent allocated to vessels landing
                                                                                                                                                            Fisheries, NOAA, finds good cause
                                                                                                      summer flounder in New Jersey is
                                              National Oceanic and Atmospheric                                                                              pursuant to 5 U.S.C. 553(b)(B) to waive
                                                                                                      16.72499 percent, resulting in an initial
                                              Administration                                                                                                prior notice and the opportunity for
                                                                                                      commercial quota of 946,512 lb (429,331
                                                                                                                                                            public comment because it would be
                                                                                                      kg). New Jersey conducted one quota
                                              50 CFR Part 648                                                                                               contrary to the public interest. This
                                                                                                      transfer of 380 lb (172 kg) to Rhode
                                                                                                                                                            action closes the commercial summer
                                              [Docket No. 161017970–6999–02]                          Island on October 4, 2017 (82 FR
                                                                                                                                                            flounder fishery for New Jersey through
                                                                                                      46936), reducing its commercial quota
                                              RIN 0648–XF856                                                                                                December 31, 2017, under current
                                                                                                      to 946,132 lb (429,158 kg).
                                                                                                         The NMFS Administrator for the                     regulations. The regulations at
                                              Fisheries of the Northeastern United                                                                          § 648.103(b) require such action to
                                              States; Summer Flounder Fishery;                        Greater Atlantic Region (Regional
                                                                                                      Administrator) monitors the state                     ensure that summer flounder vessels do
                                              Commercial Quota Harvested for the                                                                            not exceed quotas allocated to the states.
                                              State of New Jersey                                     commercial landings and determines
                                                                                                      when a state’s commercial quota has                   If implementation of this closure was
                                              AGENCY:  National Marine Fisheries                      been harvested. NMFS is required to                   delayed to solicit prior public comment,
                                              Service (NMFS), National Oceanic and                    publish a notice in the Federal Register              the quota for this fishing year will be
                                              Atmospheric Administration (NOAA),                      advising and notifying commercial                     exceeded, thereby undermining the
                                              Commerce.                                               vessels and dealer permit holders that,               conservation objectives of the Summer
                                                                                                      effective upon a specific date, the state’s           Flounder Fishery Management Plan.
                                              ACTION: Temporary rule; closure.
                                                                                                      commercial quota has been harvested                   The Assistant Administrator further
                                              SUMMARY:   NMFS announces that the                      and no commercial summer flounder                     finds, pursuant to 5 U.S.C. 553(d)(3),
                                              2017 summer flounder commercial                         quota is available to land in that state.             good cause to waive the 30-day delayed
                                              quota allocated to the State of New                     The Regional Administrator has                        effectiveness period for the reason
                                              Jersey has been harvested. Vessels                      determined, based on dealer reports and               stated above.
                                              issued a Federal commercial summer                      other available information, that the                   Authority: 16 U.S.C. 1801 et seq.
                                              flounder permit may not land summer                     2017 New Jersey commercial summer                       Dated: November 30, 2017.
                                              flounder in New Jersey for the                          flounder quota will be harvested by
                                              remainder of calendar year 2017, unless                                                                       Emily H. Menashes,
                                                                                                      December 11, 2017.
                                              additional quota becomes available                         Section 648.4(b) provides that Federal             Acting Director, Office of Sustainable
                                              through a transfer from another state.                  permit holders agree, as a condition of               Fisheries, National Marine Fisheries Service.
                                              Regulations governing the summer                        the permit, not to land summer flounder               [FR Doc. 2017–26176 Filed 11–30–17; 4:15 pm]
                                              flounder fishery require publication of                 in any state that the Regional                        BILLING CODE 3510–22–P
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Document Created: 2017-12-04 23:45:18
Document Modified: 2017-12-04 23:45:18
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective on December 30, 2017.
ContactValerie Quinn, (202) 245-0283. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.
FR Citation82 FR 57370 

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