[Federal Register Volume 82, Number 64 (Wednesday, April 5, 2017)]
[Proposed Rules]
[Pages 16550-16558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06718]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

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

[Docket No. EP 733]


Expediting Rate Cases

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: Pursuant to Section 11 of the Surface Transportation Board 
Reauthorization Act of 2015 (STB Reauthorization Act), the Surface 
Transportation Board (Board) is proposing changes to its rules 
pertaining to its rate case procedures to help improve and expedite the 
rate review process.

DATES: Comments are due by May 15, 2017. Reply comments are due June 
14, 2017.

ADDRESSES: Comments and replies may be submitted either via the Board's 
e-filing format or in the traditional paper format. Any person using e-
filing should attach a document and otherwise comply with the 
instructions at the ``E-FILING'' link on the Board's Web site, at 
``http://www.stb.gov.'' Any person submitting a filing in the 
traditional

[[Page 16551]]

paper format should send an original and 10 copies to: Surface 
Transportation Board, Attn: Docket No. EP 733, 395 E Street SW., 
Washington, DC 20423-0001. Copies of written comments and replies will 
be available for viewing and self-copying at the Board's Public Docket 
Room, Room 131, and will be posted to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Sarah Fancher, (202) 245-0355. 
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 ideas on: (1) How 
procedures to expedite court litigation could be applied to rate cases, 
and (2) additional ways to move SAC cases forward more expeditiously. 
The Board issued an Advance Notice of Proposed Rulemaking (ANPRM) on 
June 15, 2016, seeking formal comment on specific ideas raised in the 
informal meetings as well as comments on any other relevant matters.
---------------------------------------------------------------------------

    \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; Olin 
Corporation; POET Ethanol Products; Sidley Austin LLP; Slover & 
Loftus LLP; Steptoe & Johnson LLP; The Chlorine Institute; The 
Fertilizer Institute; The National Industrial Transportation League; 
and Thompson Hine LLP. We note that some participants expressed 
individual views, not on behalf of the organization(s) with which 
they are associated.
---------------------------------------------------------------------------

    The Board received comments on the ANPRM from the following 
organizations: The Rail Customer Coalition; Samuel J. Nasca on behalf 
of SMART/Transportation Division, New York State Legislative Board 
(SMART/TD-NY); the Association of American Railroads (AAR); 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); CSX 
Transportation, Inc. (CSXT); the American Chemistry Council, the Dow 
Chemical Company, and M&G Polymers USA, LLC (Joint Carload Shippers); 
Norfolk Southern Railway Company (NSR); Union Pacific Railroad Company 
(UP); and Oliver Wyman.
    Based on the comments, the Board is now proposing specific changes 
intended to help improve the rate review process and expedite rate 
cases.\2\ In Section I, the Board addresses the comments and how they 
have formed the basis of the rules proposed here. In Section II, the 
Board explains the newly proposed rules. Note, these proposed rules are 
not intended to be a comprehensive response to the comments received in 
this docket, nor are they the final action the Board plans to take to 
improve the Board's rate review processes for all shippers. The Board 
will continue to evaluate the comments received and review its 
regulations generally, and may propose additional revisions at a later 
date.
---------------------------------------------------------------------------

    \2\ Although many of the proposals pertain specifically to SAC 
cases--the Board's methodology for large rate cases--some of the 
proposals would also benefit cases filed under the Board's other 
methodologies. In those instances we specify that a particular 
proposal would also apply in, for example, Simplified-SAC or Three-
Benchmark cases (collectively, simplified standards). See Simplified 
Standards for Rail Rate Cases, EP 646 (Sub-No. 1) (STB served Sept. 
5, 2007).
---------------------------------------------------------------------------

I. Comments in Response to the ANPRM

    Pre-Complaint Period. In the ANPRM, the Board noted that several 
stakeholders suggested that the Board could require a complainant, 
before filing its SAC complaint, to file a notice similar to that 
required in the context of major and significant mergers before the 
Board. See 49 CFR 1180.4(b). One of the purposes of the pre-complaint 
filing would be to provide the railroad with time to start preparing 
for litigation, including gathering documents and data necessary for 
the discovery stage, which in turn could benefit both parties by 
accelerating the discovery process. ANPRM, slip op. at 3. Accordingly, 
the Board sought comments on the merits of adopting a pre-filing 
requirement in SAC cases, and, if a pre-filing notice were adopted, the 
information that should be contained in that notice and the appropriate 
time period for filing the notice (e.g., 30 or 60 days prior to filing 
a complaint). The Board also sought comments on the idea of offering or 
requiring mediation during a pre-complaint period.
    Several railroad and shipper interests generally support the 
requirement of a pre-filing notice. (CSXT Comments 7, AAR Comments 6, 
Joint Carload Shippers Comments 4-5.) CSXT and Joint Carload Shippers 
comment that the filing would provide early notice of impending 
discovery obligations. (CSXT Comments 7-10, Joint Carload Shippers 
Comments 4-5.) CSXT also comments that a pre-filing notice could allow 
the parties to agree on a protective order that could be in place at 
the outset of the case. (CSXT Comments 8.)
    Conversely, NSR and Coal Shippers/NARUC comment that a pre-filing 
notice in and of itself likely would not do much to expedite rate 
cases. (NSR Comments 35, Coal Shippers/NARUC Comments 33.) NSR argues 
that, even with such a notice, the railroad can only begin to gather 
the necessary documents and data once the shipper has filed its case, 
indicating whether it is a SAC, Simplified-SAC, or Three-Benchmark 
case, and the shipper has served its discovery requests, informing the 
railroad of the time frame for discovery materials and identified the 
segments of the railroad for which discovery is sought. (NSR Comments 
35.) Coal Shippers/NARUC comment that once a shipper has decided to 
file a SAC case, it is ready to do so immediately, and because of the 
negotiations between the shipper and rail carriers where a potential 
SAC case is in play, many rail carriers start gathering the necessary 
SAC information without any pre-filing requirement. (Coal Shippers/
NARUC Comments 33-34.) Coal Shippers/NARUC comment that the only 
potential benefit of a pre-filing requirement is one that includes a 
response deadline--e.g., requiring a rail carrier to produce specified 
SAC information no later than 30 days after the complaint is filed. 
Coal Shippers/NARUC suggest that the Board consider a procedure where 
the pre-filing requirement is at the complainant shipper's option, and, 
if the shipper so elects, the respondent rail carrier is required to 
provide information at a specified date after the complaint is filed. 
(Coal Shippers/NARUC Comments 34.)
    Regarding whether mediation should be conducted during a pre-
complaint period, CSXT and Joint Carload Shippers comment that doing so 
would be beneficial in that it would allow parties to focus exclusively 
on litigation after the complaint has been filed. (CSXT Comments 9-10, 
Joint Carload Shippers Comments 4-5.) AAR comments that mediation at 
the outset of the process could allow the parties to avoid litigation 
altogether, though it would not actually expedite the rate case itself 
once it is filed. (AAR

[[Page 16552]]

Comments 6.) Coal Shippers/NARUC comment that no coal rate cases have 
settled because of the Board's mediation process, and that mandatory 
mediation has driven up the costs associated with pursing relief from 
the Board. (Coal Shippers/NARUC Comments 40.) Coal Shippers/NARUC 
suggest eliminating mandatory mediation of SAC disputes entirely, 
though leaving the option open for the parties if they jointly agree to 
engage in mediation at any time during the SAC case process. (Coal 
Shippers/NARUC Comments 40.)
    With respect to the timing of the pre-filing notice, both CSXT and 
Joint Carload Shippers argue that 60 days prior to the filing of a SAC 
complaint probably would be optimal, and Joint Carload Shippers assert 
that this would afford sufficient time for scheduling and conducting 
mediation. (CSXT Comments 10, Joint Carload Shippers Comments 5.) 
Although Coal Shippers/NARUC oppose the requirement of a pre-filing 
notice, they argue that, if one is mandated by the Board, it should be 
filed no later than 30 days prior to the date the complaint is filed. 
(Coal Shippers/NARUC Comments 38-39.)
    Concerning the content of the pre-filing notice, parties suggest 
that the pre-filing notice could include: (1) The rate that will be 
challenged; (2) the origin-destination pair(s) being challenged; (3) 
the commodities at issue; (4) the states the shipper expects its SARR 
may traverse; and (5) other pertinent information. (See CSXT Comments 
11, Joint Carload Shippers Comments 5, AAR Comments 6; Coal Shippers/
NARUC Comments 38-39 \3\.)
---------------------------------------------------------------------------

    \3\ Again, Coal Shippers/NARUC oppose the requirement of a pre-
filing notice, but offer suggestions in the event that the Board 
were to require a pre-filing notice.
---------------------------------------------------------------------------

    The Board is persuaded that establishing a pre-complaint period, 
during which parties engage in mediation without the burden of 
simultaneous litigation and discovery, outweighs any burden the pre-
complaint period may add. The Board believes that such a requirement 
would help the case proceed more efficiently and quickly once the 
complaint is filed because the pre-filing notice would put the parties 
on notice as to what they likely will need to produce in discovery. 
When the Board first codified mandatory mediation in SAC cases in 
Procedures to Expedite Resolution of Rail Rate Challenges to be 
Considered Under the Stand-Alone Cost Methodology, EP 638, slip op. at 
2-3, 13-14 (STB served Apr. 3, 2003), the Board believed that the most 
appropriate time to mediate was after the complaint was filed. Now, 
with the benefit of more than a decade of experience with mediation, 
the Board is convinced that pre-complaint mediation would be more 
beneficial to SAC litigants.\4\
---------------------------------------------------------------------------

    \4\ The existence of the pre-filing requirement would not affect 
the statutory requirement that a complaint must be filed within two 
years after the claim accrues.
---------------------------------------------------------------------------

    With respect to the timing of the pre-filing notice, the Board 
believes that a longer period of 70 days is appropriate to accommodate 
the full schedule of mediation so that parties will have the time to 
focus on resolutions before litigation begins. The Board welcomes 
comment on this proposed longer period. With respect to the contents of 
the notice, the Board believes that the most useful elements are: (1) 
The rate to be challenged; (2) the origin/destination pair(s) to be 
challenged; and (3) the commodities at issue. The Board also sees the 
benefit of having a protective order in place as early as possible, and 
thus requiring the shipper to include with its pre-filing notice a 
motion for protective order. Accordingly, as discussed in Section II, 
the Board proposes to require a complainant to submit a pre-filing 
notice and motion for protective order 70 days before filing a SAC 
complaint.
    The Board recognizes Coal Shippers/NARUC's concerns that, once 
shippers have considered filing a SAC case, they may wish to litigate 
immediately, but the Board believes that the benefits of engaging in 
early mediation, establishing a protective order, and providing early 
notice of impending discovery obligations outweigh that delay. The 
Board does not agree with the Coal Shippers/NARUC's suggestion that the 
Board eliminate mandatory mediation of SAC disputes altogether, given 
the potential benefit of mediation in SAC cases. Contrary to Coal 
Shippers/NARUC's claim, mandatory mediation did result in a settlement 
in a rate case involving coal. See NRG Power Marketing LLC v. CSX 
Transp., Inc., NOR 42122, slip op. at 1 (STB served July 8, 2010.)
    Discovery. The Board also sought comment on several ways in which 
the Board could change its discovery procedures to help improve and 
expedite rate cases.
    a. Service of initial discovery requests. The Board sought comment 
on requiring parties to either serve standard discovery requests or 
disclosures of information with the filing of their complaints and 
answers, as is done in some federal courts. ANPRM, slip op. at 3-4. NSR 
strongly supports the concept of standardizing initial discovery 
requests for both the complainant and the defendant and further 
supports the concept of requiring these initial discovery requests to 
be served concurrently with the complaint or answer, as applicable. 
(NSR Comments 36.) Joint Carload Shippers also support standardized 
disclosures, although they state that there is not much merit to 
standardized discovery requests, as the time savings is not in the 
standardization of discovery requests, but in requiring automatic and 
earlier production of responsive information. (Joint Carload Shippers 
Comments 6-7.) Joint Carload Shippers focus on the potential time 
savings from the standardization of traffic and revenue data. (Joint 
Carload Shippers Comments 7-9.)
    CSXT does not take a position on standardizing discovery requests, 
but cautions that discovery requests, while relatively consistent from 
case to case, evolve over time. (CSXT Comments 23-24.) Coal Shippers/
NARUC do not support standardized discovery requests, and comment that 
SAC discovery questions have evolved over time, and should continue to 
do so to meet shippers' discovery needs and to address the 
technological changes in how rail carriers collect, store, and maintain 
data. (Coal Shippers/NARUC Comments 43.) Coal Shippers/NARUC also do 
not support the use of standardized disclosures. (Coal Shippers/NARUC 
Comments 43.) They note that while the specific categories of 
information that shippers need--what they term ``Core SAC Data''--
generally remains the same from case to case, the exact set of 
responsive information coal shippers need can change over time based on 
case-specific needs and changes in how rail carriers maintain and 
update their internal databases. (Coal Shippers/NARUC 43.) Thus, 
instead of standardized disclosures, Coal Shippers/NARUC suggest the 
following process: (1) Require the complainant shipper to file its 
initial discovery requests along with its complaint; (2) require Board 
staff to hold a technical discovery conference with the parties no 
later than 15 days after the initial discovery requests are filed, at 
which the complainant shipper will identify those questions seeking 
Core SAC Data, and discuss logistical issues about producing this data; 
and (3) require that, following the conference, the Board issue an 
order directing the defendant rail carrier to respond to the 
complainant shipper's specific requests seeking Core SAC Data no later 
than 60 days after the initial discovery requests

[[Page 16553]]

were filed. (Coal Shippers/NARUC Comments 45.) Coal Shippers/NARUC 
further suggest that the Board should require submission of discovery 
by rail carriers no later than 20 days after the shipper's complaint is 
filed. Coal Shippers/NARUC also propose that the Board allow rail 
carrier requests for staff conferences regarding discovery requests at 
any time after 40 days have elapsed since filing of a complaint. (Coal 
Shippers/NARUC Comments 47.)
    The Board is persuaded that the value of allowing discovery 
requests and information disclosed in SAC cases to evolve outweighs the 
potential time saved by standardizing discovery requests or 
standardized disclosures. Accordingly, the Board will not propose to 
change the SAC case regulations in this manner. However, the Board 
agrees with the general consensus among commenters that beginning 
discovery as soon as possible will help expedite SAC cases. Therefore, 
the Board proposes requiring a complainant to certify that it has 
served its initial discovery requests with its complaint and requiring 
a defendant to certify that it has served its initial discovery 
requests with its answer.
    We do not see the need to adopt Coal Shippers/NARUC's proposed 
process involving a technical conference at which the shipper would 
identify the discovery requests seeking Core SAC Data in discovery 
served with the complaint at this time. The Board believes this should 
be evident from the discovery itself. However, as discussed further 
below, the Board encourages additional use of conferences between the 
parties and Board staff to promptly resolve any disputes that arise and 
parties could request a conference early in the discovery process if 
necessary in a particular case.
    b. Meet and confer requirement. The Board sought comment on the 
merits of a requirement, similar to Federal Rule of Civil Procedure 37, 
that any party filing a motion to compel certify that it has attempted 
to confer with the opposing party first. ANPRM, slip op. at 5.
    Railroad and shipper interests generally support such a meet and 
confer requirement. (CSXT Comments 28-29, Coal Shippers/NARUC Comments 
51, NSR Comments 41-42, Joint Carload Shippers Comments 16.) Coal 
Shippers/NARUC suggest that any such rule also address what they claim 
is continuing confusion over the Board's procedural rule that requires 
the filing of motions to compel in certain instances no later than 10 
days after an insufficient response is received. See 49 CFR 1114.31(a). 
Specifically, Coal Shippers/NARUC also suggest that the Board confirm 
that the 10-day rule does not apply to requests for document 
production. (Coal Shippers/NARUC Comments 51-52.) In addition, Coal 
Shippers/NARUC suggest that the 10-day rule be changed to 14 days for 
other covered discovery to allow a moving party sufficient time to 
adhere to any new ``confer first'' rule. (Coal Shippers/NARUC Comments 
51-52.) Joint Carload Shippers comment that there must be an exception 
for situations where consultation is not practical due to time 
constraints. (Joint Carload Shippers Comments 16.) NSR suggests that, 
rather than imposing a meet-and-confer requirement, the Board should 
require Board staff to ``convene a conference with the parties to 
discuss'' a motion to compel, rather than making it optional, as is 
currently done in the existing regulations. (NSR Comments 41-42.) \5\
---------------------------------------------------------------------------

    \5\ NSR also suggests that the Board codify that ``a party 
seeking to compel discovery must show (1) that it needs the 
information to make its case, (2) that the information cannot be 
readily obtained through other means, and (3) that the request is 
not unduly burdensome.'' (NSR Comments 30 (citing Procedures to 
Expedite, EP 638, slip op. at 4 (STB served Apr. 3, 2003).) The 
Board does not believe that its current standard for ruling on 
motions to compel is flawed or that NSR's proposal would expedite 
the decision-making process.
---------------------------------------------------------------------------

    The Board agrees with the majority of comments that adding a meet-
and-confer requirement would help to reduce the number of disputes that 
reach the Board and thus expedite rate cases. The Board acknowledges 
Joint Carload Shippers' concern that there are situations where 
consultation may be difficult due to time constraints, but does not 
believe that the best way of handling those instances is to create an 
exception to the rule. Instead, the Board proposes a requirement 
modeled on Federal Rule of Civil Procedure 37, which requires that the 
movant certify that it has in good faith met and conferred or attempted 
to meet and confer with the person or party failing to answer discovery 
to resolve the issue without Board intervention.
    The Board is not convinced that it needs to extend its 10-day rule 
if it adopts a meet-and-confer requirement. The Board believes that 10 
days is sufficient time to confer or attempt to confer with an 
unresponsive party, and extending that period any further would 
unnecessarily delay discovery.\6\ Additionally, the Board does not 
agree with NSR that there is a need to modify 49 CFR 1114.31(a)(3) to 
make a staff conference mandatory. Certain disputes may be resolved 
more efficiently by a decision issued by the Director of the Office of 
Proceedings under 49 CFR 1114.31(a)(4) without the need for a staff 
conference. However, the Board will continue to convene staff 
conferences when appropriate, and encourages any party that believes 
such a conference would aid in resolving a dispute to request the Board 
convene a staff conference at any point in the proceeding.
---------------------------------------------------------------------------

    \6\ In addition, Coal Shippers/NARUC suggest that the Board 
confirm that the 10-day rule in 49 CFR 1114.31(a) does not apply to 
requests for document production. However, because this is a change 
to the regulations that would impact more than just rate 
reasonableness cases, the Board does not believe that it is 
appropriate to address Coal Shippers/NARUC's concern in this 
proceeding, which is limited specifically to procedures in rate 
cases. In any event, although Coal Shippers/NARUC claim that this 
regulation has created confusion in rate cases, it does not cite any 
examples.
---------------------------------------------------------------------------

    Evidentiary Submissions. The Board also sought comment on whether 
it should consider staggering the filing of public and highly 
confidential versions of the parties' pleadings to give parties more 
time to ensure that public versions of filings are appropriately 
redacted without delaying the case. ANPRM, slip op. at 7. Additionally, 
the Board suggested that it could limit final briefs to certain 
subjects on which the Board would like further argument rather than 
allowing generalized argument. ANPRM, slip op. at 6.
    a. Staggered filings and confidential designations. Several 
comments from railroad and shipper interests support the idea of 
staggering public and highly confidential versions of the parties' 
pleadings. (CSXT Comments 39, Coal Shippers/NARUC Comments 61, NSR 
Comments 48, Joint Carload Shippers Comments 26.) Coal Shippers/NARUC 
propose three business days for the staggering of the filings. (Coal 
Shippers/NARUC Comments 61.) CSXT cautions, however, that the delay in 
filing the public versions would delay the ability of in-house 
personnel to begin analyzing the filings and suggests that parties 
identify the information in filings that can be shared with in-house 
personnel simultaneously with highly confidential submissions. (CSXT 
Comments 39.) CSXT argues that any delay in providing evidence to 
parties' in-house experts and personnel may require extending a case's 
procedural schedule. (CSXT Comments 40.) NSR notes that this proposal 
likely would do more to ensure proper redactions than to expedite rate 
cases. (NSR Comments 48.)
    CSXT also recommends that the Board create a standard rule for 
identifying highly confidential and confidential materials in parties' 
pleadings. (CSXT Comments 40.) CSXT asserts that it and other parties 
have used the convention of double braces for

[[Page 16554]]

highly confidential material (e.g., {{highly 
confidential{time} {time} ) and single braces for confidential material 
(e.g., {confidential{time} ), but others have designated material in a 
more haphazard way, which makes it difficult to identify materials that 
can be shared with in-house personnel. (CSXT Comments 40.)
    The Board acknowledges CSXT's concern that delaying the submission 
of public filings delays the ability of in-house personnel to review 
and respond to the filings. However, the Board believes the appropriate 
remedy is to set a delay of three business days, as suggested by Coal 
Shippers/NARUC, rather than have parties identify the information in 
filings that can be shared with in-house personnel simultaneously with 
the highly confidential submission. The Board believes that the 
evolution of rate case practice makes this change appropriate now, even 
though the Board rejected such a proposal in Procedures to Expedite, EP 
638 (STB served June 6, 2003), reconsideration denied (STB served July 
31, 2003). When the Board held in Procedures to Expedite that parties 
must file a public version of their submissions simultaneously with any 
highly confidential or confidential version they might also choose to 
file, the Board suggested that parties ``should propose procedural 
schedules that allow the time they will need to comply with the 
redaction requirements by the due dates for their filings with the 
Board.'' Procedures to Expedite, EP 638, slip op. at 5. Over a decade 
of rate case experience has demonstrated that this is not a practicable 
solution, and the Board is persuaded that staggered filings are 
appropriate. Therefore, as discussed below, the Board proposes allowing 
parties to submit public versions of their filings three business days 
after the submission of the highly confidential versions in all rate 
case proceedings.
    The Board also agrees with CSXT's comment that standardizing the 
identification of public, confidential, and highly confidential 
material will reduce confusion. Therefore, in Section II, the Board 
proposes creating standard identifying markers that would be applied in 
all rate case proceedings. The Board also proposes standard markers for 
sensitive security information.\7\
---------------------------------------------------------------------------

    \7\ Protective orders in SAC cases generally distinguish between 
``confidential,'' ``highly confidential,'' and ``sensitive security 
information.''
---------------------------------------------------------------------------

    b. Limits on final briefs. Coal Shippers/NARUC comment that, 
generally, limiting final briefs to specific issues of concern to the 
Board is a good way to make the briefs more useful to the Board and 
perhaps reduce the costs that the parties otherwise would incur in 
presenting a brief that addresses a much wider swath of case issues. 
(Coal Shippers/NARUC Comments 60-61.) Joint Carload Shippers support 
limiting the final briefs to specific subjects identified by the Board 
based upon its review of the evidence, or, as an alternative, 
staggering the briefing schedule, to allow the complainant, which has 
the burden of proof, the opportunity to respond to the defendant's 
surrebuttal arguments. (Joint Carload Shippers Comments 25.) NSR 
comments that while final briefs could be limited to subjects on which 
the Board would like further information, the Board would benefit from 
building in some flexibility for the parties to highlight issues they 
believe are important. (NSR Comments 47.)
    The Board believes that selection of the topics for final briefs 
could be beneficial, however, it would require a Board decision 
following the close of evidence. The Board is 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. More 
importantly, the Board believes that the better approach for 
encouraging parties to focus on the most important issues in SAC and 
Simplified-SAC cases is to limit the length of final briefs. The Board 
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, the 
Board proposes to limit final briefs to 30 pages, inclusive of 
exhibits, in all SAC and Simplified-SAC cases. The Board believes that 
this is sufficient space for the parties to articulate their final 
concerns, but limited enough to prevent further argument on all issues 
and surrebuttal.
    Interaction with Board Staff. The Board sought comment on the 
increased use of written questions and technical conferences in SAC 
cases, starting with an early technical conference to establish ground 
rules and issue-specific Board expectations. ANPRM, slip op. at 7. The 
Board also suggested that it could provide advance notice of the topics 
to be discussed in a technical conference to promote an efficient and 
productive conference. ANPRM, slip op. at 7. Finally, the Board 
suggested that it could appoint a liaison to the parties 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. ANPRM, slip op. at 7.
    Several railroads and shipper interests supported the idea of 
increased staff involvement. (AAR Comments 8; CSXT Comments 40-41; NSR 
Comments 12; Joint Carload Shippers Comments 26-28.) Coal Shippers/
NARUC agree that increased staff involvement, as outlined by the Board 
in the ANPRM, would be very useful to the parties and should help 
advance the submission, and decision, of rate cases in an expeditious 
manner. (Coal Shippers/NARUC Comments 62.) Joint Carload Shippers argue 
that greater interaction through technical conferences and written 
interrogatories could have several benefits associated with many of the 
other subjects in the ANPRM.\8\ CSXT supports the idea of a liaison to 
the parties as a way to resolve disputes short of formal motions to 
compel. (CSXT Comments 40-41.)
---------------------------------------------------------------------------

    \8\ For example, Joint Carload Shippers note that a pre-trial 
conference with Board staff would serve many of the same functions 
of Federal Rule of Civil Procedure 16, and it supports greater use 
of technical conferences during Board review of the parties' 
evidence. (Joint Carload Shippers Comments 26-28.)
---------------------------------------------------------------------------

    The Board is convinced that increased staff involvement at all 
stages of a rate case, both through technical conferences/written 
questions and a Board-appointed liaison to the parties, would reduce 
the number of disputes between the parties and thus expedite the rate 
case process.\9\ Thus, the Board proposes to appoint 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 intends to make 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 intends to provide advance 
notice of the topics to be discussed to promote an efficient and 
productive conference. The Board believes that increased communication 
between the parties and the Board would expedite rate cases by reducing 
the number of disputes between the parties and thus the

[[Page 16555]]

number of issues that must be decided by the Board.
---------------------------------------------------------------------------

    \9\ In the ANPRM, the Board sought comment on the increased use 
of written questions and technical conferences in SAC cases in 
particular; however, the Board believes that increased staff 
involvement would help to improve and expedite rate cases under 
other methodologies as well.
---------------------------------------------------------------------------

II. The Proposed Rules

    The proposed rules contain changes to the Board's regulations at 49 
CFR parts 1104, 1109, 1111, 1114, and 1130, which are set out below. In 
proposing these changes, the Board has considered the suggestions from 
commenters on the ANPRM, incorporated those suggestions where 
appropriate, and modified them where necessary to propose changes to 
the regulations that the Board believes would best help to improve and 
expedite the rate case process.
    Pre-Complaint Period. The proposed rules include changes creating 
and detailing a pre-complaint period in SAC cases intended to provide 
parties with an opportunity to mediate the dispute and prepare for 
litigation.
    1. Pre-filing Notice. First, the Board proposes to create a pre-
complaint period at newly redesignated 49 CFR 1111.1 by requiring a SAC 
complainant to submit a pre-filing notice at least 70 days prior to 
filing its complaint. The Board proposes that the pre-filing notice 
contain the rate and origin/destination pair(s) to be challenged, the 
commodities at issue, and a motion for protective order pursuant to 49 
CFR 1104.14(c). This requirement would accomplish several goals. It 
would put the defendant on notice of the impending complaint such that 
it can begin to prepare for discovery and litigation. In addition, the 
early submission of a motion for protective order would allow a 
protective order to be in place at the outset of a case, thus 
expediting discovery production and disclosures. Finally, it would 
allow the parties to engage in mediation pre-complaint, as described 
below.
    2. Mandatory Mediation. Second, the Board proposes to revise 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 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.
    3. Appointment of a Board Liaison to the Parties. Third, under 49 
CFR 1111.1, the Board proposes in SAC cases to appoint a liaison to the 
parties within 10 business days of the complainant's submission of the 
pre-filing notice. The Board proposes to amend the newly redesignated 
49 CFR 1111.10(a) to appoint a liaison within 10 business days of the 
filing of the complaint in cases using simplified standards. With this 
addition to the regulations, the Board intends to improve communication 
between the parties and the Board by providing the parties with a point 
of contact to whom they can address questions or disputes.
    Discovery. The proposed rules include changes to the Board's 
discovery regulations intended to streamline discovery in rate cases.
    1. Initial Discovery Requests. First, the Board proposes to 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 proposes to 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 proposes to amend the newly redesignated 49 CFR 1111.3(b) to 
require the complainant to certify that it has served on the defendant 
any initial discovery requests affected by the amended or supplemental 
complaint, if any. The Board proposes 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 discovery requests affected by the amended or 
supplemental complaint, if any. With these changes, the Board intends 
to expedite discovery, and thus the rate case, by beginning discovery 
with the complaint. These changes would eliminate the current potential 
gap between the filing of the complaint and the beginning of discovery.
    2. Meet and Confer Requirement. Second, the Board proposes to amend 
49 CFR 1114.31(a) to include a certification that the party filing a 
motion to compel has in good faith conferred or attempted to confer 
with the party serving discovery to settle the dispute over those terms 
without Board intervention. The requirement would apply in SAC cases 
and cases filed under simplified standards. The Board believes that 
this requirement will encourage parties to resolve disputes without 
involving the Board, thereby expediting litigation of a rate case by 
reducing the number of necessary Board decisions.
    Evidentiary Submissions. The proposed rules include changes to the 
Board's evidentiary regulations intended to improve and expedite the 
presentation of evidence in rate cases.
    1. Stagger the Submission of Public and Highly Confidential 
Versions of Filings. First, in both SAC and simplified standards cases, 
the Board proposes to allow parties to submit 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 highly confidential 
versions. With this change the Board intends to allow parties a 
reasonable amount of time to ensure confidentiality after submitting 
the highly confidential version of each filing.\10\
---------------------------------------------------------------------------

    \10\ 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. It is the Board's 
understanding that parties would continue to do so, and properly 
identify all confidential, highly confidential, and sensitive 
security information in the first filing according to the convention 
described below.
---------------------------------------------------------------------------

    2. Standard Convention for Identifying Confidential, Highly 
Confidential, and Sensitive Security Information. Second, the Board 
proposes to 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 Board proposes 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 to be contained in triple braces, 
i.e., {{{Z{time} {time} {time} . This change would eliminate any 
confusion caused by parties using different methods of identification 
and would apply in both SAC and simplified standards cases.
    3. Limits on Final Briefs. Third, the Board proposes to limit the 
length of final briefs to 30 pages, inclusive of exhibits. With this 
change the Board intends to have the parties focus on the most 
important issues, and eliminate additional time otherwise used by the 
Board selecting certain issues or issuing decisions to limit the length 
of final briefs.
    Technical Modifications. In addition, the Board proposes two 
modifications in the existing regulations. Specifically, the Board 
proposes to amend the newly redesignated 49 CFR 1111.11(b) to apply the 
requirement that the parties confer to SAC complaints in addition to 
simplified standards complaints. The Board also proposes to amend 49 
CFR 1130.1 to include the correct reference to the newly redesignated 
49 CFR 1111.2(a).

[[Page 16556]]

    The Board seeks comments from all interested persons on these 
proposed rules. Importantly, the Board encourages interested persons to 
propose and discuss potential modifications or alternatives to the 
proposed rule. The Board will consider all recommended proposals in an 
effort to establish the most useful changes to improve and expedite the 
rate review process.
    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 notice of proposed rulemaking, 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).
    The Board's proposed changes to its regulations here are intended 
to improve and expedite its rate case procedures and do not mandate or 
circumscribe the conduct of small entities. Effective June 30, 2016, 
for the purpose of RFA analysis for rail carriers subject to our 
jurisdiction, the Board defines a ``small business'' as only including 
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).\11\ The changes proposed here are largely 
procedural or codify existing practice, and would not have a 
significant economic impact on small entities. Furthermore, since the 
inception of the Board in 1996, only three of the 51 cases filed 
challenging the reasonableness of freight rail rates have involved a 
Class III rail carrier as a defendant. Those three cases involved a 
total of 13 Class III rail carriers. The Board estimates that there are 
approximately 656 Class III rail carriers. Therefore, the Board 
certifies 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. The 
proposed rules, if promulgated, would amend the existing procedures for 
filing and litigating a rate case, as directed by Section 11 of the STB 
Reauthorization Act.
---------------------------------------------------------------------------

    \11\ Class III carriers have annual operating revenues of $20 
million or less in 1991 dollars, or $36,633,120 or less when 
adjusted for inflation using 2015 data. Class II rail carriers have 
annual operating revenues of less than $250 million but in excess of 
$20 million in 1991 dollars, or $457,913,998 and $36,633,120 
respectively, when adjusted for inflation using 2015 data. The Board 
calculates the revenue deflator factor annually and publishes the 
railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.
---------------------------------------------------------------------------

    Paperwork Reduction Act. 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), the Board seeks comments about each 
of the proposed collections 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. The Board 
estimates these new requirements would add a total annual hour burden 
of eight hours and no total annual ``non-hour burden'' cost under the 
PRA. Information pertinent to these issues is included in the Appendix. 
This proposed rule will be submitted to OMB for review as required 
under 44 U.S.C. 3507(d) and 5 CFR 1320.11. Comments received by the 
Board regarding the information collection will also be forwarded to 
OMB for its review when the final rule is published.
    It is ordered:
    1. Comments are due by May 15, 2017. Reply comments are due by June 
14, 2017.
    2. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    3. Notice of this decision will be published in the Federal 
Register.
    4. This decision is effective on its service date.

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: March 30, 2017.

    By the Board, Board Members Begeman, Elliott, and Miller.
Raina S. Contee,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend 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:


[[Page 16557]]


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

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 10 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).

PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES

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

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


Sec. Sec.  1111.1 through 1111.10   [Redesignated as Sec. Sec.  1111.2 
through 1111.11]

0
6. Redesignate Sec. Sec.  1111.1 through 1111.10 as Sec. Sec.  1111.2 
through 1111.11, respectively.:
0
7. Add new Sec.  1111.1 to read as follows:


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 to be examined 
under constrained market pricing, complainant shall file a notice with 
the Board. The notice shall:
    (i) Identify the rate to be challenged;
    (ii) Identify the origin/destination pair(s) to be challenged;
    (iii) Identify the affected commodities; and
    (iv) 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.
0
8. Add paragraph (f) to newly redesignated 1111.2 to read as follows:


Sec.  1111.2   Content of formal complaints; joinder.

* * * * *
    (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.
0
9. Revise newly redesignated Sec.  1111.3 to read as follows:


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 of this part, 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.
0
10. Add paragraph (f) to newly redesignated 1111.5 to read as follows:


Sec.  1111.5  Answers and cross complaints.

* * * * *
    (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.
0
11. Revise newly redesignated Sec.  1111.10(a) to read as follows:


Sec.  1111.10   Procedural schedule in cases using simplified 
standards.

    (a) * * *
    (1) In cases relying upon the Simplified-SAC methodology:
* * * * *
    In addition, the Board will appoint a liaison within 10 business 
days of the filing of the complaint.
    (2) In cases relying upon the Three-Benchmark methodology:
* * * * *
    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 
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.
0
12. Amend Sec.  1111.9 as follows:
0
a. Revise newly redesignated paragraph (a).
0
b. Further redesignate the newly redesignated paragraph (b) as 
paragraph (c), and revise newly redesignated paragraph (c).
0
c. Add new paragraph (b).
    The additions and revisions read as follows:


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:
    Day 0--Complaint filed, discovery period begins.
    Day 7 or before--Conference of the parties convened pursuant to 
Sec.  1111.11(b).
    Day 20--Defendant's answer to complaint due.
* * * * *
    (b) Staggered filings; final briefs. (1) The parties may submit 
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.
* * * * *
0
13. Amend Sec.  1111.10 as follows:
0
a. Further redesignate the newly redesignated paragraphs (b), (c), and 
(d) as (c), (d) and (e) respectively.

[[Page 16558]]

0
b. Add new paragraph (b) to read as follows:
    (b) Staggered filings; final briefs. (1) The parties may submit 
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.
0
14. Revise newly redesignated Sec.  1111.11(b) to read as follows:


Sec.  1111.11   Meeting to discuss procedural matters.

* * * * *
    (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
15. The authority citation for part 1114 is revised to read as follows:

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

0
16. Amend Sec.  1114.21 as follows:
0
a. Revise paragraph (d).
0
b. Revise the first sentence of paragraph (f).
    The revisions 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
17. In Sec.  1114.31(a) revise paragraph (a) introductory text to read 
as follows:


Sec.  1114.31   Failure to respond to discovery.

    (a) Failure to answer. If a deponent fails to answer or gives an 
evasive answer or incomplete answer to a question propounded under 
Sec.  1114.24(a), or a party fails to answer or gives evasive or 
incomplete answers to written interrogatories served pursuant to Sec.  
1114.26(a), the party seeking discovery may apply for an order 
compelling an answer by motion filed with the Board and served on all 
parties and deponents. Such motion to compel an answer must be filed 
with the Board and served on all parties and deponents. In stand-alone 
cost and simplified standards cases, such motion to compel an answer 
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. Such motion 
to compel an answer must be filed with the Board within 10 days after 
the failure to obtain a responsive answer upon deposition, or within 10 
days after expiration of the period allowed for submission of answers 
to interrogatories. On matters relating to a deposition on oral 
examination, the proponent of the question may complete or adjourn the 
examination before he applies for an order.
* * * * *

PART 1130--INFORMAL COMPLAINTS

0
18. The authority citation for Part 1130 is revised to read as follows:

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

0
19. 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.
* * * * *

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix

Information Collection

    Title: Complaints under 49 CFR 1111.
    OMB Control Number: 2140-0029.
    Form Number: None.
    Type of Review: Revision of a currently approved collection.\12\
---------------------------------------------------------------------------

    \12\ The Surface Transportation Board filed a 60-day notice of 
intent to seek extension of approval on November 29, 2016. See 81 FR 
86,061.
---------------------------------------------------------------------------

    Summary: As part of its continuing effort to reduce paperwork 
burdens, and as required by the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3521 (PRA), the Surface Transportation Board (Board) 
gives notice that it is requesting from the Office of Management and 
Budget (OMB) approval for the revision of the currently approved 
information collection, Complaints under 49 CFR part 1111, OMB 
Control No. 2140-0029, as further described below. The requested 
revision to the currently approved collection is necessitated by 
this Notice of Proposed Rulemaking, which amends certain information 
collected by the Board in stand-alone cost (SAC) rate cases. All 
other information collected by the Board in the currently approved 
collection is without change from its approval.
    Respondents: Affected shippers, railroads, and communities that 
seek redress for alleged violations related to unreasonable rates, 
unreasonable practices, service issues, and other statutory claims.
    Number of Respondents: Four.
    Frequency of Response: On occasion. In recent years, respondents 
have filed approximately four complaints of this type per year with 
the Board.
    Total Burden Hours (annually including all respondents): 1,876 
(estimated hours per complaint (469) x total number of complaints 
(4)).
    Total Annual ``Non-Hour Burden'' Cost: $5,848 (estimated non-
hour burden cost per complaint ($1,462) x total number of complaints 
(4)).
    Needs and Uses: Under the Board's regulations, persons may file 
complaints before the Board pursuant to 49 CFR part 1111 seeking 
redress for alleged violations of provisions of the Interstate 
Commerce Act, Public Law 104-88, 109 Stat. 803 (1995). In the last 
few years, the most significant complaints filed at the Board allege 
that railroads are charging unreasonable rates or that they are 
engaging in unreasonable practices. See, e.g., 49 U.S.C. 10701, 
10704, and 11701. The collection by the Board of these complaints, 
and the agency's action in conducting proceedings and ruling on the 
complaints, enables the Board to meet its statutory duty to regulate 
the rail industry.

[FR Doc. 2017-06718 Filed 4-4-17; 8:45 am]
 BILLING CODE 4915-01-P