Complaints -- Market Dominance Streamlined Approach

§ 1110.6

49 CFR Ch. X (10–1–11 Edition)

rulemaking proposal. Comments which
are filed late will be considered so far
as possible without incurring additional expense, delay, or prejudice to
other parties.

date that the final decision is published
in the FEDERAL REGISTER and should
identify the interest of the petitioner,
the specific action sought, and the arguments favoring that action.

§ 1110.6 Petitions for extension of time
to comment.
(a) Any person may petition the
Board for an extension of time to submit comments in response to a notice
of proposed rulemaking. The petition
and one copy must be submitted at
least 10 days prior to the deadline for
filing comments. The filing of the petition does not automatically extend the
time for the filing of petitioner’s comments.
(b) The Board will grant the petition
only if the petitioner shows a substantive interest in the proposed rule
and good cause for the extension, and if
the extension is in the public interest.
If an extension is granted, notice of it
will be published in the FEDERAL REGISTER, and it will apply to all persons.

PART 1111—COMPLAINT AND
INVESTIGATION PROCEDURES
Sec.
1111.1 Content of formal complaints; joinder.
1111.2 Amended and supplemental complaints.
1111.3 Service.
1111.4 Answers and cross complaints.
1111.5 Motions to dismiss or to make more
definite.
1111.6 Satisfaction of complaint.
1111.7 Investigations on the Board’s own
motion.
1111.8 Procedural schedule in stand-alone
cost cases.
1111.9 Procedural schedule in cases using
simplified procedures.
1111.10 Meeting to discuss procedural matters.
AUTHORITY: 49 U.S.C. 721, 10704, and 11701.

§ 1110.7 Availability of dockets.
Dockets of pending rulemaking proceedings are maintained in the Office
of Proceedings. These dockets are
available for inspection by any person,
and copies may be obtained upon payment of the prescribed fee.
[74 FR 52907, Oct. 15, 2009]

§ 1110.8 Adoption of final rules.
If, after consideration of all comments received, final rules are adopted,
notice will be published in the FEDERAL
REGISTER.
§ 1110.9 Petition for waiver.
Any person may petition the Board
for a permanent or temporary waiver
of any rule. Petitions should be filed
with the Chief, Section of Administration, Office of Proceedings, Surface
Transportation Board, Washington, DC
20423–0001, and should identify the rule
involved.
[74 FR 52907, Oct. 15, 2009]

§ 1110.10 Petitions for reconsideration.
Any person may file a petition for reconsideration of the Board’s decision in
a rulemaking proceeding. Petitions
should be filed within 20 days of the

SOURCE: 61 FR 52711, Oct. 8, 1996, unless
otherwise noted.

§ 1111.1 Content of formal complaints;
joinder.
(a) General. A formal complaint must
contain the correct, unabbreviated
names and addresses of each complainant and defendant. It should set forth
briefly and in plain language the facts
upon which it is based. It should include specific reference to pertinent
statutory provisions and Board regulations, and should advise the Board and
the defendant fully in what respects
these provisions or regulations have
been violated. The complaint should
contain a detailed statement of the relief requested. Relief in the alternative
or of several different types may be demanded, but the issues raised in the
formal complaint should not be broader
than those to which complainant’s evidence is to be directed at the hearing.
In a complaint challenging the reasonableness of a rail rate, the complainant
should indicate whether, in its view,
the reasonableness of the rate should
be examined using constrained market
pricing or using the simplified standards adopted pursuant to 49 U.S.C.
10701(d)(3). If the complainant seeks to

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Surface Transportation Board, DOT

§ 1111.3

use the simplified standards, it should
support this request by submitting, at
a minimum, the following information:
(1) The carrier or region identifier.
(2) The type of shipment (local, received-terminated, etc.).
(3) The one-way distance of the shipment.
(4) The type of car (by URCS code).
(5) The number of cars.
(6) The car ownership (private or railroad).
(7) The commodity type (STCC code).
(8) The weight of the shipment (in
tons per car).
(9) The type of movement (individual,
multi-car, or unit train).
(10) A narrative addressing whether
there is any feasible transportation alternative for the challenged movements.
(11) For matters for which voluntary,
binding arbitration is available pursuant to 49 CFR part 1108, the complaint
shall state that arbitration was considered, but rejected, as a means of resolving the dispute.
(b) Disclosure with simplified standards
complaint. The complainant must provide to the defendant all documents relied upon in formulating its assessment
of a feasible transportation alternative
and all documents relied upon to determine the inputs to the URCS Phase III
program.
(c) Multiple causes of action. Two or
more grounds of complaint concerning
the same principle, subject, or statement of facts may be included in one
complaint, but should be stated and
numbered separately.
(d) Joinder. Two or more complainants may join in one complaint against
one or more defendants if their respective causes of action concern substantially the same alleged violations and
like facts.
(e) Request for access to waybill data.
Parties needing access to the Waybill
Sample to prepare their case should
follow the procedures set forth at 49
CFR 1244.8.
[61 FR 52711, Oct. 8, 1996, as amended at 63 FR
2639, Jan. 16, 1998; 67 FR 36822, May 28, 2002;
72 FR 51375, Sept. 7, 2007]

§ 1111.2 Amended
complaints.

and

supplemental

(a) Generally. An amended or supplemental complaint may be tendered for
filing by a complainant against a defendant or defendants named in the
original complaint, stating a cause of
action alleged to have accrued within
the statutory period immediately preceding the date of such tender, in favor
of complainant and against the defendant or defendants. The time limits for
responding to an amended or supplemental complaint are computed pursuant to §§ 1111.4 and 1111.5 of this part, as
if the amended or supplemental complaint was an original complaint.
(b) Simplified standards. A complaint
filed under the simplified standards
may be amended once before the filing
of opening evidence to opt for a different rate reasonableness methodology, among Three-Benchmark, Simplified-SAC or Full-SAC. If so amended, the procedural schedule begins
again under the new methodology as
set forth at §§ 1111.8 and 1111.9. However, only one mediation period per
complaint shall be required.
[72 FR 51375, Sept. 7, 2007]

§ 1111.3

Service.

A complainant is responsible for
serving formal complaints, amended or
supplemental complaints, and cross
complaints on the defendant(s). Service
shall be made by sending a copy of such
complaint to the chief legal officer of
each defendant by either confirmed
facsimile and first-class mail or express overnight courier. The cover page
of each such facsimile and the front of
each such first-class mail or overnight
express courier envelope shall include
the following legend: ‘‘Service of STB
Complaint’’. Service of the complaint
shall be deemed completed on the date
on which the complaint is served by
confirmed facsimile or, if service is
made by express overnight courier, on
the date such complaint is actually received by the defendant. When the
complaint involves more than one defendant, service of the complaint shall
be deemed completed on the date on
which all defendants have been served.
An original and ten copies of the complaint should be filed with the Board

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§ 1111.4

49 CFR Ch. X (10–1–11 Edition)

together with an acknowledgment of
service by the persons served or proof
of service in the form of a statement of
the date and manner of service, of the
names of the persons served, and of the
addresses to which the papers were
mailed or at which they were delivered,
certified by the person who made service. If complainant cannot serve the
complaint, an original of each complaint accompanied by a sufficient
number of copies to enable the Board
to serve one upon each defendant and
to retain 10 copies in addition to the
original should be filed with the Board.
[61 FR 52711, Oct. 8, 1996, as amended at 61 FR
58491, Nov. 15, 1996]

§ 1111.4 Answers and cross complaints.
(a) Generally. An answer shall be filed
within the time provided in paragraph
(c) of this section. An answer should be
responsive to the complaint and should
fully advise the Board and the parties
of the nature of the defense. In answering a complaint challenging the reasonableness of a rail rate, the defendant should indicate whether it will contend that the Board is deprived of jurisdiction to hear the complaint because the revenue-variable cost percentage generated by the traffic is less
than 180 percent, or the traffic is subject to effective product or geographic
competition. In response to a complaint filed under the simplified standards, the answer must include the defendant’s preliminary estimate of the
variable cost of each challenged movement calculated using the unadjusted
figures produced by the URCS Phase III
program.
(b) Disclosure with simplified standards
answer. The defendant must provide to
the complainant all documents that it
relied upon to determine the inputs
used in the URCS Phase III program.
(c) Time for filing; copies; service. An
answer must be filed within 20 days
after the service of the complaint or
within such additional time as the
Board may provide. The original and 10
copies of an answer must be filed with
the Board. The defendant must serve
copies of the answer upon the complainant and any other defendants.
(d) Cross complaints. A cross complaint alleging violations by other parties to the proceeding or seeking relief

against them may be filed with the answer. An answer to a cross complaint
shall be filed within 20 days after the
service date of the cross complaint.
The party shall serve copies of an answer to a cross complaint upon the
other parties.
(e) Failure to answer complaint. Averments in a complaint are admitted
when not denied in an answer to the
complaint.
[72 FR 51376, Sept. 7, 2007]

§ 1111.5 Motions to dismiss or to make
more definite.
An answer to a complaint or cross
complaint may be accompanied by a
motion to dismiss the complaint or
cross complaint or a motion to make
the complaint or cross complaint more
definite. A motion to dismiss can be
filed at anytime during a proceeding. A
complainant or cross complainant
may, within 10 days after an answer is
filed, file a motion to make the answer
more definite. Any motion to make
more definite must specify the defects
in the particular pleading and must describe fully the additional information
or details thought to be necessary.
§ 1111.6

Satisfaction of complaint.

If a defendant satisfies a formal complaint, either before or after answering,
a statement to that effect signed by
the complainant must be filed (original
only need be filed), setting forth when
and how the complaint has been satisfied. This action should be taken as expeditiously as possible.
§ 1111.7 Investigations on the Board’s
own motion.
(a) Service of decision. A decision instituting an investigation on the
Board’s own motion will be served by
the Board upon respondents.
(b) Default. If within the time period
stated in the decision instituting an investigation, a respondent fails to comply with any requirement specified in
the decision, the respondent will be
deemed in default and to have waived
any further proceedings, and the investigation may be decided forthwith.

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Surface Transportation Board, DOT

§ 1111.9

§ 1111.8 Procedural schedule in standalone cost cases.
(a) Procedural schedule. Absent a specific order by the Board, the following
general procedural schedule will apply
in stand-alone cost cases:
Day 0—Complaint filed, discovery period begins.
Day 7 or before—Conference of the parties
convened pursuant to § 1111.10(b).
Day 20—Defendant’s answer to complaint
due.
Day 75—Discovery completed.
Day 120—Complainant files opening evidence
on absence of intermodal and intramodal
competition, variable cost, and stand-alone
cost issues. Defendant files opening evidence on existence of product and geographic competition, and revenue-variable
cost percentage generated by complainant’s traffic.
Day 180—Complainant and defendant file
reply evidence to opponent’s opening evidence.
Day 210—Complainant and defendant file rebuttal evidence to opponent’s reply evidence.

(b) Conferences with parties. (1) The
Board will convene a technical conference of the parties with Board staff
prior to the filing of any evidence in a
stand-alone cost rate case, for the purpose of reaching agreement on the operating characteristics that are used in
the variable cost calculations for the
movements at issue. The parties should
jointly propose a schedule for this
technical conference.
(2) In addition, the Board may convene a conference of the parties with
Board staff, after discovery requests
are served but before any motions to
compel may be filed, to discuss discovery matters in stand-alone cost rate
cases. The parties should jointly propose a schedule for this discovery conference.
[61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16,
1996, as amended at 63 FR 2639, Jan. 16, 1998;
68 FR 17313, Apr. 9, 2003]

§ 1111.9 Procedural schedule in cases
using simplified standards.
(a) Procedural schedule. Absent a specific order by the Board, the following
general procedural schedules will apply
in cases using the simplified standards:
(1) In cases relying upon the Simplified-SAC methodology:
Day 0—Complaint filed (including complainant’s disclosure).

Day 10—Mediation begins.
Day 20—Defendant’s answer to complaint (including defendant’s initial
disclosure).
Day 30—Mediation ends; discovery begins.
Day 140—Defendant’s second disclosure.
Day 150—Discovery closes.
Day 220—Opening evidence.
Day 280—Reply evidence.
Day 310—Rebuttal evidence
Day 320—Technical conference (market
dominance and merits).
Day 330—Final briefs.
(2) In cases relying upon the ThreeBenchmark method:
Day 0—Complaint filed (including complainant’s disclosure).
Day 10—Mediation begins. (STB production of unmasked Waybill Sample.)
Day 20—Defendant’s answer to complaint (including defendant’s initial
disclosure).
Day 30—Mediation ends; discovery begins.
Day 60—Discovery closes.
Day 90—Complainant’s opening (initial
tender of comparison group and opening evidence on market dominance).
Defendant’s opening (initial tender of
comparison group).
Day 95—Technical conference on comparison group.
Day 120—Parties’ final tenders on comparison group. Defendant’s reply on
market dominance.
Day 150—Parties’ replies to final
tenders. Complainant’s rebuttal on
market dominance.
(b) 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

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§ 1111.10

49 CFR Ch. X (10–1–11 Edition)

movements, provided in electronic format.
(4) Revenue allocation for the onSARR 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.
(c) 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.
(d) 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.
[72 FR 51376, Sept. 7, 2007]

§ 1111.10 Meeting
dural matters.

to

discuss

proce-

(a) Generally. In all complaint proceedings, other than those challenging
the reasonableness of a rail rate based
on stand-alone cost or the simplified
standards, the parties shall meet, or
discuss by telephone, discovery and
procedural matters within 12 days after
an answer to a complaint is filed. Within 19 days after an answer to a complaint is filed, the parties, either jointly or separately, shall file a report with
the Board setting forth a proposed procedural schedule to govern future activities and deadlines in the case.
(b) Stand-alone cost or simplified standards complaints. In complaints challenging the reasonableness of a rail
rate based on stand-alone cost or the
simplified standards, the parties shall
meet, or discuss by telephone, discovery and procedural matters within 7
days after the mediation period ends.
The parties should inform the Board as
soon as possible thereafter whether
there are unresolved disputes that re-

quire Board intervention and, if so, the
nature of such disputes.
[72 FR 51376, Sept. 7, 2007]

PART 1112—MODIFIED
PROCEDURES
Sec.
1112.1 When modified procedure is used.
1112.2 Decisions directing modified procedure.
1112.3 Default for failure to comply with
schedule; effect of default.
1112.4 Petitions to intervene.
1112.5 Joint pleadings.
1112.6 Verified statements; contents.
1112.7 Records in other Board proceedings.
1112.8 Verification.
1112.9 Sample verification for statement of
fact under modified procedure.
1112.10 Requests for oral hearings and cross
examination.
1112.11 Authority of officers.
AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721.
SOURCE: 47 FR 49558, Nov. 1, 1982, unless
otherwise noted.

§ 1112.1 When modified procedure is
used.
The Board may decide that a proceeding be heard under modified procedure when it appears that substantially
all material issues of fact can be resolved through submission of written
statements, and efficient disposition of
the proceeding can be accomplished
without oral testimony. Modified procedure may be ordered on the Board’s
initiative, or upon approval of a request by any party.
[47 FR 49558, Nov. 1, 1982, as amended at 61
FR 52712, Oct. 8, 1996]

§ 1112.2 Decisions directing modified
procedure.
A decision directing that modified
procedure be used will set out the
schedule for filing verified statements
by all parties and will list the names
and addresses of all persons who at
that time are on the service list in the
proceeding. In this part, a statement
responding to an opening statement is
referred to as a ‘‘reply’’, and a statement responding to a reply is referred
to as a ‘‘rebuttal’’. Replies to rebuttal
material are not permitted. The filing
of motions or other pleadings will not

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