[Federal Register Volume 91, Number 95 (Monday, May 18, 2026)]
[Proposed Rules]
[Pages 28520-28521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-09900]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1104
[Docket No. EP 790]
Review of Replies to Replies
AGENCY: Surface Transportation Board.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Board's regulations pertaining to the filing of pleadings
prohibit the filing of a reply to a reply. The Board is considering
whether to modify its regulations or practices to allow replies to
replies (and if so, to what extent) and seeks comments on how the
Board's regulations on such filings would best promote fairness,
efficiency, and predictability for all parties that appear in
proceedings before the Board.
DATES: Comments are due by June 17, 2026.
ADDRESSES: Comments may be filed with the Board either via e-filing or
in writing addressed to: Surface Transportation Board, Attn: Docket No.
EP 790, 395 E Street SW, Washington, DC 20423-0001. Comments will also
be posted to the Board's website.
FOR FURTHER INFORMATION CONTACT: Sarah Fancher at (202) 740-5507.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: In May 2025, as part of ongoing,
comprehensive agency reform efforts, Vice Chairman Schultz and Board
staff held a series of listening sessions with legal practitioners to
discuss their experiences before the Board. Press Release, STB, STB
Gathers More than 100 Ideas from Practitioners to Streamline Board
Processes, (June 10, 2025), https://www.stb.gov/news-communications/latest-news/pr-25-22/. The sessions were an opportunity for
practitioners to offer ideas on possible improvements to the agency's
processes and procedures affecting litigants and parties appearing
before the agency. Dozens of attorneys participated and offered
numerous ideas for process improvements. Many practitioners raised the
Board's practice regarding the treatment of replies to replies and
indicated a desire for a more consistent approach to such filings.
While the Board's regulations generally prohibit the filing of a
reply to a reply, 49 CFR 1104.13,\1\ historically the Board often has
accepted them in individual cases in the interest of a complete record,
see, e.g., City of Alexandria, Va.--Pet. for Declaratory Ord., FD
35157, slip op. at 2 (STB served Nov. 6, 2008). Recently, however, the
Board has indicated that ``the benefits from the orderly and efficient
administration of cases, including reducing burden on the public and
agency, justify enforcing this rule more strictly.'' See Sunflower
State Indus. Ry.--Pet. for Declaratory Ord., FD 36714 (Sub-No. 1), slip
op. at 2 n.3 (STB served Mar. 28, 2025).
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\1\ The Board's regulations allow for replies to replies in
certain proceedings, such as rate cases. See, e.g., 49 CFR
1111.9(a)(7) (allowing for rebuttal evidence in rate cases).
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Public input would assist the Board in assessing whether to modify
its replies to replies (hereafter, rebuttals) regulations and/or
practices or to leave the regulation unchanged. A review of federal
court and other agency practices reveals various approaches to
rebuttals, ranging from a strict prohibition to allowing rebuttals as
of right in all motion practice.\2\ The Board recognizes that there are
advantages and disadvantages to both approaches and that the optimal
approach may fall somewhere between or depend on the type of
proceeding. On the one hand, allowing rebuttals would ensure that the
moving party or the party with the burden of proof has ``the last
word,'' which may promote fairness. In addition, arguments may be
crystalized and ambiguities clarified in rebuttals, which could lead to
better-informed Board decisions. On the other hand, rebuttals might be
used inappropriately to introduce new evidence or argument that was
not, but could have been, included with the proponent's opening
pleadings, creating unfair surprise for litigants. Further, prohibiting
rebuttals may promote efficiency by bringing the record to a close
sooner and encouraging parties to include all relevant evidence and
argument in their initial pleadings.
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\2\ See, e.g., N.D. Ga. Civ. R. 7.1(c) (allowing for replies to
a responsive pleading within 14 days); D. Mass. R. 7.1(b)(3)
(requiring leave of court to file a reply to an opposition filing);
W.D. Mich. Civ. R. 7.2(c) (allowing for replies to a responsive
brief that opposes a dispositive motion within 14 days); id. at
7.3(c) (prohibiting replies to a responsive brief that opposes a
non-dispositive motion without leave of court); 47 CFR 1.45
(allowing a reply to an opposition filing filed with the Federal
Communications Commission within five days).
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The Board seeks comments to assist it in deciding whether to
develop modified regulations or practices regarding rebuttals or to
leave the regulation unchanged. The Board is particularly interested in
the following options:
Leave 49 CFR 1104.13 unchanged. Should the Board keep its
current regulation that does not allow for rebuttals? If the Board were
to leave the current prohibition in place, under what standard should
it consider requests for leave to file a rebuttal? Should the Board
more strictly enforce its current prohibition on rebuttals?
Amend 49 CFR 1104.13 to allow for rebuttal. Should the
Board amend its regulation to allow rebuttal in all circumstances, or
should rebuttal be limited to certain types of matters and/or motions?
If the latter, in what situations should rebuttals be permitted? If a
rebuttal is not allowed as of right in a particular matter or motion,
under what standard should the Board consider a request to file a
rebuttal?
Limits to rebuttal pleadings. If the Board were to amend
its regulation to allow rebuttals, should the Board limit the content
of rebuttals, e.g., to address matters raised on reply? What would be
an appropriate deadline for a rebuttal and should a deadline vary
depending on the type of motion and/or proceeding at issue? Should the
Board impose other limits on rebuttals, e.g., word count limits? Should
the Board prohibit any subsequent filings (i.e., surrebuttals), barring
exceptional circumstances?
Other motions practice. Should the Board amend its
regulations to include a meet-and-confer requirement for some or all
motions practice before the Board, e.g., for procedural motions in
matters with a limited number of parties?
Commenters are not limited to addressing these questions but may
offer other input on treatment of rebuttals and related motion practice
issues. The
[[Page 28521]]
Board seeks comments and suggestions that are consistent with the goal
of balancing fairness with efficiency and predictability for all
parties that appear in proceedings before the Board.
Because this advance notice of proposed rulemaking (ANPRM) does not
impose or propose any requirements, and instead seeks comments and
suggestions for the Board to consider in possibly developing a
subsequent proposed rule, the requirements of the Regulatory
Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, do not apply to this
action. Nevertheless, as part of any comments submitted in response to
this ANPRM, parties may include comments or information that could help
the Board assess the potential impact of a subsequent regulatory action
on small entities pursuant to the RFA.
Executive Order 12866, as modified by Executive Order 14215,
provides that the Office of Information and Regulatory Affairs will
review all significant rules. OIRA has determined that this rule is not
significant under section 3(f) of Executive Order 12866.
It is ordered:
1. Comments are due on June 17, 2026.
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 date of service.
Decided: May 13, 2026.
By the Board, Board Members Fuchs, Hedlund, and Schultz.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2026-09900 Filed 5-15-26; 8:45 am]
BILLING CODE 4915-01-P