§ 1111.10 - Procedural schedule in cases using simplified standards.

§ 1111.10 Procedural schedule in cases using simplified standards.

Cross Reference

Link to an amendment published at 88 FR 318, Jan. 4, 2023.

(a) Procedural schedule. Absent a specific order by the Board, the following general procedural schedules will apply in cases using the simplified standards:

(1)

(i) In cases relying upon the Simplified-SAC methodology:

(A) Day 0 - Complaint filed (including complainant's disclosure).

(B) Day 10 - Mediation begins.

(C) Day 20 - Defendant's answer to complaint (including defendant's initial disclosure).

(D) Day 30 - Mediation ends; discovery begins.

(E) Day 140 - Defendant's second disclosure.

(F) Day 150 - Discovery closes.

(G) Day 220 - Opening evidence.

(H) Day 280 - Reply evidence.

(I) Day 310 - Rebuttal evidence. In cases using the streamlined market dominance approach, a telephonic evidentiary hearing before an administrative law judge, as described in § 1111.12(d) of this chapter, will be held at the discretion of the complainant in lieu of the submission of a written rebuttal on market dominance issues. The hearing will be held on or about the date that the complainant's rebuttal evidence on rate reasonableness is due.

(J) Day 320 - Technical conference (market dominance and merits, except for cases using the streamlined market dominance approach, in which the technical conference will be limited to merits issues).

(K) Day 330 - Final briefs.

(ii) In addition, the Board will appoint a liaison within 10 business days of the filing of the complaint.

(2)

(i) In cases relying upon the Three-Benchmark methodology:

(A) Day 0 - Complaint filed (including complainant's disclosure).

(B) Day 10 - Mediation begins. (STB production of unmasked Waybill Sample.)

(C) Day 20 - Defendant's answer to complaint (including defendant's initial disclosure).

(D) Day 30 - Mediation ends; discovery begins.

(E) Day 60 - Discovery closes.

(F) Day 90 - Complainant's opening (initial tender of comparison group and opening evidence on market dominance). Defendant's opening (initial tender of comparison group).

(G) Day 95 - Technical conference on comparison group.

(H) Day 120 - Parties' final tenders on comparison group. Defendant's reply on market dominance.

(I) Day 150 - Parties' replies to final tenders. Complainant's rebuttal on market dominance. In cases using the streamlined market dominance approach, a telephonic evidentiary hearing before an administrative law judge, as described in § 1111.12(d) of this chapter, will be held at the discretion of the complainant in lieu of the submission of a written rebuttal on market dominance issues. The hearing will be held on or about the date that the complainant's rebuttal evidence on rate reasonableness is due.

(ii) In addition, the Board will appoint a liaison within 10 business days of the filing of the complaint.

(3)

(i) In cases relying upon the Final Offer Rate Review procedure where the complainant elects streamlined market dominance:

(A) Day −25 - Complainant files notice of intent to initiate case and serves notice on defendant.

(B) Day 0 - Complaint filed; discovery begins.

(C) Day 35 - Discovery closes.

(D) Day 49 - Complainant's opening (rate reasonableness analysis, final offer, and opening evidence on market dominance). Defendant's opening (rate reasonableness analysis and final offer).

(E) Day 59 - Parties' replies. Defendant's reply evidence on market dominance.

(F) Day 66 - Complainant's letter informing the Board whether it elects an evidentiary hearing on market dominance.

(G) Day 73 - Telephonic evidentiary hearing before an administrative law judge, as described in § 1111.12(d) of this chapter, at the discretion of the complainant (market dominance).

(H) Day 149 - Board decision.

(ii) In cases relying upon the Final Offer Rate Review procedure where the complainant elects non-streamlined market dominance:

(A) Day -25 - Complainant files notice of intent to initiate case and serves notice on defendant.

(B) Day 0 - Complaint filed; discovery begins.

(C) Day 35 - Discovery closes.

(D) Day 49 - Complainant's opening (rate reasonableness analysis, final offer, and opening evidence on market dominance). Defendant's opening (rate reasonableness analysis and final offer).

(E) Day 79 - Parties' replies. Defendant's reply evidence on market dominance.

(F) Day 169 - Board decision.

(iii) In addition, the Board will appoint a liaison within five business days after the Board receives the pre-filing notification.

(iv) The mediation period in Final Offer Rate Review cases is 20 days beginning on the date of appointment of the mediator(s). The Board will appoint a mediator or mediators as soon as possible after the filing of the notice of intent to initiate a case.

(v) With its final offer, each party must submit an explanation of the methodology it used. If a complainant fails to submit explanation and support for its offer, the Board may dismiss the complaint without determining the reasonableness of the challenged rate.

(b) Staggered filings; final briefs.

(1) The parties may submit non-public (e.g., confidential, highly confidential) versions of filings on the dates identified in the procedural schedule, and submit public versions of those filings within three business days thereafter.

(2) In cases relying upon the Simplified-SAC methodology, final briefs are limited to 30 pages, inclusive of exhibits.

(c) Defendant's second disclosure. In cases using the Simplified-SAC methodology, the defendant must make the following disclosures to the complainant by Day 170 of the procedural schedule.

(1) Identification of all traffic that moved over the routes replicated by the SARR in the Test Year.

(2) Information about those movements, in electronic format, aggregated by origin-destination pair and shipper, showing the origin, destination, volume, and total revenues from each movement.

(3) Total operating and equipment cost calculations for each of those movements, provided in electronic format.

(4) Revenue allocation for the on-SARR portion of each cross-over movement in the traffic group provided in electronic format.

(5) Total trackage rights payments paid or received during the Test Year associated with the route replicated by the SARR.

(6) All workpapers and documentation necessary to support the calculations.

(d) Conferences with parties. The Board may convene a conference of the parties with Board staff to facilitate voluntary resolution of discovery disputes and to address technical issues that may arise.

(e) Complaint filed with a petition to revoke a class exemption. If a complaint is filed simultaneously with a petition to revoke a class exemption, the Board will take no action on the complaint and the procedural schedule will be held in abeyance automatically until the petition to revoke is adjudicated.

[82 FR 57379, Dec. 5, 2017, as amended at 85 FR 47697, Aug. 6, 2020; 88 FR 318, Jan. 4, 2023]