[Federal Register Volume 68, Number 68 (Wednesday, April 9, 2003)]
[Rules and Regulations]
[Pages 17312-17314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8645]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1109, 1111 and 1114

[STB Ex Parte No. 638]


Procedures to Expedite Resolution of Rate Challenges to be 
Considered Under the Stand-Alone Cost Methodology

AGENCY: Surface Transportation Board, DOT.

ACTION: Final rules and request for comments.

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SUMMARY: The Board amends its regulations to expedite the resolution of 
rail rate challenges considered under the stand-alone cost (SAC) 
methodology. The revisions institute a requirement for mandatory, non-
binding post-complaint mediation between the shipper and railroad under 
Board auspices, and establish expedited processes, using Board staff, 
for resolving discovery and evidentiary disputes. The Board also 
requests comments on the following discovery-related issues: developing 
a list of standard information that should be routinely made available 
in discovery; limiting the number of discovery requests available to 
the parties; limiting the number of years of data for which discovery 
responses would be required, and establishing a cut-off date for 
updating discovery responses; and cost-sharing for production of 
discovery responses.

DATES: The final rules are effective on May 9, 2003; comments are due 
on June 9, 2003, with reply comments due on June 19, 2003.

ADDRESSES: Send comments (an original plus 10 copies) referring to Ex 
Parte No. 638 to: Surface Transportation Board, 1925 K Street, NW., 
Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Jamie P. Rennert (202) 565-1566. 
[Federal Information Relay Service (FIRS) (Hearing Impaired): (800) 
877-8339.]

SUPPLEMENTARY INFORMATION: The Surface Transportation Board requests 
comments as follows:

Standard Discovery Requests

    We are asking each interested party to (1) submit lists of all of 
the information and documents that (a) it believes it should be 
entitled to obtain as a matter of course in discovery in a SAC case and 
(b) it would expect to produce to the other party as a matter of course 
in discovery in a SAC case, and then (2) comment on the lists submitted 
by other parties in this proceeding. After reviewing the parties' lists 
and comments, we will decide whether to issue a list of standard 
information and documents that the parties to a SAC case would be 
required to produce. We also seek comment on the practical aspects of 
this proposal, such as the appropriate timing for such initial 
disclosures. For example, would it be practical to require the 
complainant's initial disclosures to be made contemporaneously with the 
filing of the complaint, and to make the defendant's initial 
disclosures due at the same time as its answer to the complaint?

Additional Discovery

    A suggestion was made to place a limit on the number of discovery 
requests that each party would be allowed to make, absent permission 
from the Board. This is the procedure that applies to complex 
commercial litigation conducted in the federal courts, in Rule 33(a) of 
the Federal Rules of Civil Procedure (which limits a party to 25 
written interrogatories, including all discrete subparts, without leave 
of court). We seek comment on (1) the appropriate number of 
interrogatories and document requests that could be made without our 
leave, and why, and (2) whether such a limitation is a necessary and 
appropriate measure to prevent parties from requesting data in multiple 
formats or versions. Commenters should address this proposal both as if 
it were to be adopted alone and as if it were to be adopted in 
conjunction with a list of standard information and documents that the 
parties to a SAC case would be required to produce as initial 
disclosures.

Time Periods

    Suggestions were also made to limit the number of years for which 
data would need to be produced for a SAC case, absent permission from 
the Board, and to establish a cut-off date for discovery after which 
responses to discovery requests would not need to be updated. We seek 
comment on (1) the advantages and disadvantages of establishing such 
limits, (2) whether

[[Page 17313]]

such limits should be standard or determined on a case-by-case basis at 
an initial discovery conference, (3) what the appropriate limitations 
would be, and for which types of data, and (4) an appropriate cut-off 
point in the procedural schedule for making additional discovery 
requests.

Costs

    Finally, a suggestion has been made that the parties share the 
costs of production of data in response to discovery requests, rather 
than the responding party alone shouldering what can be substantial 
costs. We seek comment on (1) our authority to require such cost-
sharing, (2) the circumstances, if any, under which parties should be 
required to share those costs, (3) how the costs of production would be 
quantified, and (4) how, if at all, the costs should be divided between 
the parties.
    Additional information is contained in the Board's decision. To 
obtain a copy of the full decision, visit the Board's Web site at 
http://www.stb.dot.gov; or call the Board's Information Officer at 
(202) 565-1674. To purchase a copy of the decision, write to, call, 
email, or pick up in person from Da-2-Da Legal Copy Service, Room 405, 
1925 K Street, NW., Washington, DC 20006, (202) 293-7776, 
[email protected]. [Federal Information Relay Service (FIRS) 
(Hearing Impaired): (800) 877-8339.]
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    We conclude that our action will not have a significant effect on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act because small entities are not litigants in 
the rail rate cases that are the subject of this proceeding.

List of Subjects in 49 CFR Parts 1109, 1111 and 1114

    Practice and procedure, Railroads.

    Decided: April 3, 2003.
By the Board, Chairman Nober and Commissioner Morgan.
Vernon A. Williams,
Secretary.?

0
The Surface Transportation Board amends 49 CFR parts 1109, 1111 and 
1114 as follows:

PART 1109--USE OF ALTERNATIVE DISPUTE RESOLUTION IN BOARD 
PROCEEDINGS AND THOSE IN WHICH THE BOARD IS A PARTY

0
1. The authority citation for part 1109 continues to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.


0
2. Add new Sec.  1109.4, to read as follows:


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

    (a) 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 filing a formal 
complaint under 49 CFR Part 1111.
    (b) Within 10 business days after the shipper files its formal 
complaint, the Board will assign a mediator to the case. Within 5 
business days of the assignment to mediate, the mediator shall contact 
the parties to discuss ground rules and the time and location of any 
meeting. At least one principal of each party, who has the authority to 
bind that party, shall participate in the mediation and be present at 
any session at which the mediator requests that the principal be 
present.
    (c) The mediator will work with the parties to try to reach a 
settlement of all or some of their dispute or to narrow the issues in 
dispute, and reach stipulations that may be incorporated into any 
adjudication before the Board if mediation does not fully resolve the 
dispute. If the parties reach a settlement, the mediator may assist in 
preparing a settlement agreement.
    (d) The entire mediation process shall be private and confidential. 
No party may use any concessions made or information disclosed to 
either the mediator or the opposing party before the Board or in any 
other forum without the consent of the other party.
    (e) The mediation shall be completed within 60 days of the 
appointment of the mediator. The mediation may be terminated prior to 
the end of the 60-day period only with the certification of the 
mediator to the Board. Requests to extend mediation, or to re-engage it 
later, will be entertained on a case-by-case basis, but only if filed 
by all interested parties.
    (f) Absent a specific order from the Board, the onset of mediation 
will not affect the procedural schedule in stand-alone cost rate cases, 
set forth at 49 CFR 1111.8(a).

PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES

0
1. The authority citation for part 1111 continues to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.


0
2. Redesignate the current text in Sec.  1111.8 as Sec.  1111.8(a), add 
a new paragraph heading to redesignated paragraph (a), and add new 
paragraph (b) to read as follows:


Sec.  1111.8  Procedural schedule in stand-alone cost cases.

    (a) Procedural schedule. * * *
    (b) 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. The parties should jointly propose a schedule 
for this discovery conference.

PART 1114--EVIDENCE; DISCOVERY

0
1. The authority citation for part 1114 continues to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721, 10704, and 11701.


0
2. Revise Sec.  1114.31(a) to read as follows:


Sec.  1114.31  Failure to respond to discovery.

    (a)(1) Reply to motion to compel generally. Except in rate cases to 
be considered under the stand-alone cost methodology, the time for 
filing a reply to a motion to compel is governed by section 1104.13.
    (2) Reply to motion to compel in stand-alone cost rate cases. A 
reply to a motion to compel must be filed with the Board within 10 days 
thereafter in a rate case to be considered under the stand-alone cost 
methodology.
    (3) Conference with parties on motion to compel. Within 5 business 
days after the filing of a reply to a motion to compel in a rate case 
to be considered under the stand-alone cost methodology, Board staff 
may convene a conference with the parties to discuss the dispute, 
attempt to narrow the issues, and gather any further information needed 
to render a ruling.
    (4) Ruling on motion to compel in stand-alone cost rate cases. 
Within 5 business days after a conference with the parties convened 
pursuant to subparagraph (a)(3) of this section, the Secretary will 
issue a summary ruling on the motion to compel discovery in a stand-
alone cost rate case. If no

[[Page 17314]]

conference is convened, the Secretary will issue this summary ruling 
within 10 business days after the filing of the reply to the motion to 
compel. Appeals of a Secretary's ruling will proceed under 49 CFR 
1115.9, and the Board will attempt to rule on such appeals within 20 
days after the filing of the reply to the appeal.
* * * * *

[FR Doc. 03-8645 Filed 4-8-03; 8:45 am]
BILLING CODE 4915-15-P