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On July 31, the Surface Transportation Board (Board) issued a final rule establishing a streamlined approach for pleading market dominance in rate reasonableness proceedings. The final rule, which is part of a broader initiative to reform and streamline the Board’s rate review processes, will be effective on September 5, 2020.

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In rate reasonableness proceedings, the Board may determine if a rate is reasonable only after it finds that the rail carrier has market dominance over the transportation to which the rate applies. The final rule provides that a complainant may elect to pursue a streamlined market dominance approach, in which case it must demonstrate that the challenged movement satisfies all the following prima facie factors regarding the traffic subject to the challenged rate (and failure to meet all the factors prevents the complainant from proving market dominance using non-streamlined evidence):

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In addition to the prima facie factors detailed above, the Board adopted procedural rules to support its streamlined approach. A defendant is permitted to file a reply to a complainant’s streamlined evidence that addresses the prima facie factors and any other issues relevant to market dominance. A complainant may either submit rebuttal evidence on market dominance issues or request that an administrative law judge hold a telephonic evidentiary hearing in lieu of a written rebuttal. Defendants’ replies and complainants’ rebuttal filings are each limited to 50 pages, inclusive of exhibits and verified statements.

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Karyn A. Booth 202.263.4108 <a href="mailto:Karyn.Booth@ThompsonHine.com">Karyn.Booth@ThompsonHine.com</a>

Sandra L. Brown 202.263.4101 <a href="mailto:Sandra.Brown@ThompsonHine.com">Sandra.Brown@ThompsonHine.com</a>

Jeff Moreno 202.263.4107 <a href="mailto:Jeff.Moreno@ThompsonHine.com">Jeff.Moreno@ThompsonHine.com</a>

David E. Benz 202.263.4116 <a href="mailto:David.Benz@ThompsonHine.com">David.Benz@ThompsonHine.com</a>

Jason D. Tutrone 202.263.4143 <a href="mailto:Jason.Tutrone@ThompsonHine.com">Jason.Tutrone@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/Transportation_Update_-_STB_Issues_Final_Rule_on_Market_Dominance_Pleadings.pdf

STB Issues Final Rule on Market Dominance Pleadings

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