STB Authorizes Ex Parte Communications in Final Offer Rate Review Proceeding

Transportation Update

Date: May 21, 2020

On May 15, the Surface Transportation Board (Board) waived the general prohibition against ex parte communications in connection with its proposed Final Offer Rate Review (FORR) procedures. It is authorizing ex parte communications between industry stakeholders and Board members from June 1 until July 15, subject to the conditions described below.

The Board initiated its FORR proceeding last September and proposed new procedures for challenging the reasonableness of railroad rates in smaller cases. Specifically, it proposed to decide a case by selecting either the complainant’s or the defendant’s final rate reasonableness offer with an expedited schedule, limited discovery and firm deadlines. These new procedures would be an alternative to the Board’s existing rate case procedures, which many shippers have long regarded as too costly and time consuming.

Following its receipt of written comments, the Board decided that “it would benefit from additional stakeholder input on the proposal specifically and on how best to continue its efforts to establish a new methodology generally.” It signaled that it is looking to get a better understanding of how to establish more explicit rules for the FORR, including the principles and evidence it may find relevant in a FORR proceeding.

The Board also expressed interest in exploring potential modifications to its voluntary arbitration program to provide a practical and useful alternative dispute resolution mechanism for rate reasonableness determinations in small cases, listing the following topics it would be willing to discuss during the ex parte communications:

  • Whether parties would be willing to use the Board’s voluntary arbitration program to resolve smaller rate disputes.
  • Whether the Board’s arbitration regulations should be revised to provide that arbitration decisions are confidential to the extent permissible by law.
  • Whether railroads would be willing to opt in to the arbitration program on terms that would be acceptable to shippers.

Ex parte meetings will take place by phone or online conferences between June 1 and July 15. Parties may schedule meetings with Board members individually during these dates. A party who engages in an ex parte meeting with the Board must submit a meeting summary memorandum no later than two business days after the meeting. These memoranda will be published in the docket and parties will be able to submit comments in response to them until August 12.

FOR MORE INFORMATION

For more information, please contact:

Karyn A. Booth
202.263.4108
Karyn.Booth@ThompsonHine.com

Jeff Moreno
202.263.4107
Jeff.Moreno@ThompsonHine.com

Jason D. Tutrone
202.263.4143
Jason.Tutrone@ThompsonHine.com

or any other member of our Transportation group.

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