STB Proposes Rulemaking to Expedite Rate Review Process

Transportation Update

Date: April 04, 2017

On March 31, the Surface Transportation Board (STB or Board) issued a Notice of Proposed Rulemaking (NPRM) in Docket No. EP 733, Expediting Rate Cases. The NPRM proposes the following rules to expedite the process of challenging rail rates in accordance with the shortened procedural schedule for resolving these disputes adopted by Congress in the STB Reauthorization Act of 2015.

  • Pre-Complaint Period. A pre-complaint period in Stand-Alone Cost (SAC) rate cases is proposed to provide parties with an opportunity to mediate a dispute and prepare for litigation. A SAC complainant will be required to submit, at least 70 days prior to filing its complaint, a pre-filing notice that includes the rate and origin/destination pair(s) to be challenged, the commodities at issue and a motion for protective order. The Board also proposed to revise existing rules to move mandatory mediation in SAC cases to the pre-complaint period.
  • Discovery. The NPRM proposes regulations to streamline discovery in rate cases by beginning discovery with the complaint. The proposed rules require a complainant in a SAC proceeding to certify that it has served its initial discovery requests simultaneously with its complaint, and require a defendant in a SAC proceeding to certify that it has served its initial discovery requests simultaneously with its answer. In addition, the NPRM proposes to require a party filing a motion to compel in both SAC cases and cases filed under simplified standards to certify that it has in good faith conferred or attempted to confer with the party serving discovery to settle the dispute over those terms without Board intervention.
  • Evidentiary Submissions. In an effort to improve and expedite the presentation of evidence in rate cases, the Board proposes changes to its evidentiary regulations that would:
    • Allow parties to submit highly confidential versions of their 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.
    • Create standard identifying markers set forth in protective orders for the submission of confidential, highly confidential and sensitive security information in both SAC and simplified rate cases, eliminating any confusion caused by parties using different methods of identification.
    • Limit the length of final briefs to 30 pages, inclusive of exhibits.
  • Interaction with Board Staff. The NPRM proposes to appoint a liaison to the parties at the outset of a rate case to improve communication between the parties and the Board and to provide the parties with a point of contact to address questions or disputes. In addition, the NPRM states that the Board intends to make greater use of written questions and technical conferences at every stage of a case.

Lastly, the Board noted that these proposed rules are not intended to be the only action it takes to improve the Board’s rate review processes for all shippers.

The unpublished version of the Board’s Notice of Proposed Rulemaking is accessible on the Federal Register website. Comments are due by May 15, 2017.


For more information, please contact:

Karyn A. Booth

Sandra L. Brown

Jeff Moreno

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.