On June 15, the Surface Transportation Board (STB) issued an Advance Notice of Proposed Rulemaking (Notice) in Docket No. EP 733, Expediting Rate Cases. The Notice solicits public comment on various ideas to expedite the process of challenging rail rates to comply with the shortened procedural schedule for resolving these complex disputes adopted by Congress in the STB Reauthorization Act of 2015. Prior to issuing the Notice, STB staff conducted informal meetings with stakeholders to explore and discuss ideas. Thompson Hine lawyers participated in two of those meetings, and many of the proposals in the Notice arose from the meetings.
The Notice solicits comments on ideas the STB has grouped into six categories:
- Pre-filing requirement. This would be a specified time period prior to filing a formal complaint during which the parties could engage in STB-sponsored mediation and begin the process of assembling relevant discovery information to expedite its production.
- Standardized discovery requests and/or disclosures. Should the STB require parties to serve standardized discovery requests or automatically produce standardized information, similar to federal court requirements, and if so, what types of information should be included?
- Other discovery ideas. Should the STB limit the number of discovery requests? How might requests for admission, with sanctions for unreasonable refusals to admit, be used to narrow contested issues and avoid unnecessary presentation of evidence?
- Standardized evidence. Are there aspects of rate cases that can/should be standardized to reduce disputes?
- Evidentiary submissions. How might the STB encourage motions practice to help manage the scope and timing of cases? Should it put page limits on rebuttal evidence and/or restrict the scope of final briefs? How should the STB address the use of computer software, especially software that is not available to the general public?
- Interaction with STB staff. Is greater interaction with STB staff earlier in the rate case process beneficial and if so, how might the STB best utilize such interaction?
Although the STB expressly seeks comment on the ideas in the Notice, it also invites the submission of additional ideas on how to expedite rate cases. Opening comments are due August 1 and reply comments are due August 29.