2638 Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Rules and Regulations

1Rate Guidelines—Non-Coal Proceedings, Ex

Parte No. 347 (Sub-No. 2) (STB served Dec. 31,

1996), l S.T.B. l (1996), pet. for judicial review

pending sub nom. Association of Am. Railroads v.

Surface Transp. Bd., No. 97–1020 (D.C. Cir. filed

Jan. 10, 1997).

2The evidentiary factors are set forth in

Simplified Rate Guidelines, slip op. at 37–38.

3Factors (6) through (9) are:

(6) The feasibility and anticipated cost of

preparing a stand-alone cost presentation in the

case.

(7) An estimate of the other costs to be incurred

in pursuing the rate complaint, including preparing

necessary jurisdictional threshold and market

dominance evidence.

(8) The relief sought, including all reparations as

well as the level and duration of any rate

prescription.

(9) The present value of the relief sought.

4Constrained market pricing, including the standalone cost test, was adopted in Coal Rate

Guidelines—Nationwide, 1 I.C.C.2d 520 (1985),

aff’d sub nom. Consolidated Rail Corp. v. United

States, 812 F.2d 1444 (3d Cir. 1987).

5Both AAR and NITL support the NPR proposal

concerning a conference of the parties.

6 49 U.S.C. 10704(c)(2) requires us to decide the

rate reasonableness issue within months after the

close of the administrative record.

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1111

[STB Ex Parte No. 527 (Sub-No. 1)]

Expedited Procedures for Processing

Simplified Rail Rate Reasonableness

Proceedings

AGENCY: Surface Transportation Board,

DOT.

ACTION: Final rule.

SUMMARY: The Board amends its

complaint and investigation regulations

at 49 CFR part 1111 to reflect the

adoption of Simplified Rate Guidelines.1

EFFECTIVE DATE: February 17, 1998.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Stilling, (202) 565–1567.

(TDD for the hearing impaired: (202)

565–1695.)

SUPPLEMENTARY INFORMATION: In a

Notice of Proposed Rulemaking (NPR)

served September 24, 1997, and

published in the Federal Register on

September 26, 1997 (62 FR 50550), we

proposed to include in our regulations

a list of the information that a

complainant should supply when

seeking to challenge the reasonableness

of a rail rate using the Simplified Rate

Guidelines. We also proposed to

determine within 50 days of the filing

of a complaint whether the Simplified

Rate Guidelines could be used in a

particular case. We indicated, however,

that we were not inclined at this time

to adopt a general procedural schedule

for processing rate complaints under the

Simplified Rate Guidelines until we

gained more experience using those

guidelines. The Association of

American Railroads (AAR) and the

National Industrial Transportation

League (NITL) filed comments in

response to the NPR.

Evidentiary Factors

Both AAR and NITL support the

proposal to list in our regulations the

nine evidentiary factors that a complaint

seeking to use the Simplified Rate

Guidelines should address.2 AAR

suggests that the regulations also

explicitly require a complainant to

provide the assumptions, calculations

and workpapers on which the

information on factors (6) through (9) is

based.3

In our proposal, we assumed that a

complainant would provide sufficient

support for its responses to the

evidentiary factors. Without adequate

support, it would be difficult for us to

determine whether use of the simplified

guidelines should be permitted in a

particular case. To ensure that adequate

information is supplied to enable us

quickly to decide the appropriateness of

using the simplified guidelines, we will

add a tenth factor requiring that ‘‘the

assumptions, calculations and any

documentation necessary to support the

responses to the above listed factors’’

also be provided.

Use of Simplified Procedures

In Simplified Rate Guidelines, slip op.

at 38, we noted that a decision as to

whether to apply the simplified

guidelines or the more sophisticated

constrained market pricing procedures

(specifically the stand-alone cost test)

for evaluating the reasonableness of a

challenged rate needs to be determined

at the outset of a case.4 We also

suggested that a reasonable time frame

for making such a determination

appeared to be within 45 days after the

filing of the complaint. In its original

comments responding to the Advanced

Notice of Proposed Rulemaking (ANPR)

in this proceeding, AAR complained

that a 45-day time frame would be too

tight, as it would provide a defendant

railroad only two weeks to respond to

a complainant’s request to use the

simplified guidelines. To afford the

railroad more time to prepare its

response and to allow that response to

be filed together with the answer to the

rate complaint, in the NPR we proposed

a 50-day period instead. NITL asserts

that the initial 45-day schedule is

sufficient and that the additional five

days are unnecessary.

We adopt the 50-day schedule

proposed in the NPR. The additional

five days will not unduly prolong the

process. As indicated in the NPR, it

should also alleviate some

administrative burden by allowing a

railroad to simultaneously answer the

complaint and respond to the request

for using the simplified guidelines,

rather than requiring the filing of

separate pleadings 5 days apart.

Procedural Schedule

NITL expresses concern that, without

a general procedural schedule, the

processing of cases will be unduly

delayed. NITL suggests that cases

processed under the simplified

guidelines be handled under the basic

structure of the procedures used to

process stand-alone cost cases.

We appreciate NITL’s concern that

these cases be expedited, but we believe

that expedition can best be

accomplished, at least at the outset, on

a case-by-case basis. Absent experience

processing cases under the Simplified

Rate Guidelines, we cannot practically

establish a general schedule to govern

the filing of evidence for all cases. To

facilitate the prompt establishment of

appropriate procedural schedules in

individual cases, the parties are

expected to discuss, and if possible

agree on, a procedural schedule at the

conference of the parties that is to be

convened no later than 12 days after the

defendant files an answer to the

complaint.5 Under the regulations we

are adopting, the parties are to file a

report on the issues discussed at the

conference within 19 days of the filing

of an answer, and this report should

include a proposed procedural

schedule. Following receipt of this

report, we will move quickly to

establish the procedural schedule for

the filing of evidence.6

Waybill Access

In response to the ANPR, NITL

suggested that our Rules of Practice

governing the filing of a rate complaint

cross reference the regulations at 49 CFR

1244.8 concerning access to the Waybill

Sample. In its comments on the NPR,

NITL repeated its cross-referencing

suggestion. In light of NITL’s position

that a cross reference may ‘‘avoid

confusion that may create delays and

subsequent difficulties in meeting the

procedural schedule,’’ we will include a

new paragraph (d) in part 1111.1

referencing our regulation regarding

access to the Waybill Sample.

The Board certifies that these rules

will not have a significant economic

effect on a substantial number of small

entities. The rules should result in the
Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Rules and Regulations 2639

more expeditious processing of rail

complaints using the simplified

procedures.

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

List of Subjects in 49 CFR Part 1111

Administrative practice and

procedure, Investigations.

Decided: January 7, 1998.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, title 49 chapter X, Part 1111

of the Code of Federal Regulations is

amended as follows:

PART 1111—COMPLAINT AND

INVESTIGATION PROCEDURES

1. The authority citation for part 1111

is revised to read as follows:

Authority: 49 U.S.C. 721, 10704, and

11701.

2. Section 1111.1 is amended by

revising the last two sentences of

paragraph (a), adding paragraphs (a)(1)

through (a)(10), and adding new

paragraph (d) to read as follows:

§ 1111.1 Content of formal complaints;

joinder.

(a) * * * 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) A general history of the traffic at

issue, including how the traffic has

moved in the past, how it currently

moves, and how it can and will be

moved in the future. This information

should address not only the physical

movement of the traffic, but the type

and level of rates actually used. It

should include all carriers (rail and

nonrail) that have participated in the

transportation of this traffic or could do

so.

(2) The specific commodity

description(s) for the traffic at issue, the

shipping characteristics and

requirements of the traffic, and the type

of railroad cars required or used for the

traffic.

(3) All origins, destinations, and

origin-destination (O–D) pairs involved

in the complaint, by commodity type.

(4) The amount of traffic involved (by

commodity type), including total annual

carloadings, average tons per car,

number of carloads per shipment, and

number of carloads per week or month.

(5) Total or average revenue per

carload paid to the defendant

railroad(s), by commodity type.

(6) The feasibility and anticipated cost

of preparing a stand-alone cost

presentation in the case.

(7) An estimate of the other costs to

be incurred in pursuing the rate

complaint, including preparing

necessary jurisdictional threshold and

market dominance evidence.

(8) The relief sought, including all

reparations as well as the level and

duration of any rate prescription.

(9) The present value of the relief

sought.

(10) The assumptions, calculations

and any documentation necessary to

support the responses to the above

listed factors.

* * * * *

(d) 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 1244.8.

3. Section 1111.8 is amended by

removing the phrase ‘‘section 1111.9(b)’’

and adding the phrase ‘‘§ 1111.10(b)’’ in

its place.

4. Section 1111.9 is redesignated as

section 1111.10 and a new section

1111.9 is added to read as follows:

§ 1111.9 Procedural schedule to determine

whether to use simplified procedures.

Absent a specific order by the Board,

the following procedural schedule will

apply in determining whether to grant a

request under § 1111.1(a) to use the

simplified procedures (with the

remainder of the procedural schedule to

be determined on a case-by-case basis):

Day 0—Complaint filed, discovery

period begins.

Day 20—Defendant’s answer to

complaint and opposition to use of

simplified procedures due.

Day 30—Complainant’s response to use

of simplified procedures due.

Day 50—Board’s determination of

whether simplified procedures should

be used.

5. In newly designated § 1111.10,

paragraph (a) is revised to read as

follows:

§ 1111.10 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, 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.

* * * * *

[FR Doc. 98–1066 Filed 1–15–98; 8:45 am]

BILLING CODE 4915–00–P