DOT 49 CFR PART 1111-2010 COMPLAINT AND INVESTIGATION PROCEDURES.pdf

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1、124 49 CFR Ch. X (10110 Edition) 1110.6 rulemaking proposal. Comments which are filed late will be considered so far as possible without incurring addi-tional expense, delay, or prejudice to other parties. 1110.6 Petitions for extension of time to comment. (a) Any person may petition the Board for a

2、n extension of time to sub-mit 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 peti-tion does not automatically extend the time for the filing of petitioners com-ments.

3、(b) The Board will grant the petition only if the petitioner shows a sub-stantive 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 REG-ISTER, and it will apply to

4、all persons. 1110.7 Availability of dockets. Dockets of pending rulemaking pro-ceedings are maintained in the Office of Proceedings. These dockets are available for inspection by any person, and copies may be obtained upon pay-ment of the prescribed fee. 74 FR 52907, Oct. 15, 2009 1110.8 Adoption of

5、 final rules. If, after consideration of all com-ments 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

6、 of Administra-tion, Office of Proceedings, Surface Transportation Board, Washington, DC 204230001, and should identify the rule involved. 74 FR 52907, Oct. 15, 2009 1110.10 Petitions for reconsideration. Any person may file a petition for re-consideration of the Boards decision in a rulemaking proc

7、eeding. Petitions should be filed within 20 days of the 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 ar-guments favoring that action. PART 1111COMPLAINT AND INVESTIGATION PROCEDURES Sec. 1111

8、.1 Content of formal complaints; join-der. 1111.2 Amended and supplemental com-plaints. 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 Boards own motion. 1111.8 Procedural schedul

9、e in stand-alone cost cases. 1111.9 Procedural schedule in cases using simplified procedures. 1111.10 Meeting to discuss procedural mat-ters. AUTHORITY: 49 U.S.C. 721, 10704, and 11701. SOURCE: 61 FR 52711, Oct. 8, 1996, unless otherwise noted. 1111.1 Content of formal complaints; joinder. (a) Gener

10、al. A formal complaint must contain the correct, unabbreviated names and addresses of each complain-ant and defendant. It should set forth briefly and in plain language the facts upon which it is based. It should in-clude specific reference to pertinent statutory provisions and Board regula-tions, a

11、nd 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 re-lief requested. Relief in the alternative or of several different types may be de-manded, but the issues raised in the f

12、ormal complaint should not be broader than those to which complainants evi-dence is to be directed at the hearing. In a complaint challenging the reason-ableness of a rail rate, the complainant should indicate whether, in its view, the reasonableness of the rate should be examined using constrained

13、market pricing or using the simplified stand-ards adopted pursuant to 49 U.S.C. 10701(d)(3). If the complainant seeks to VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reprod

14、uction or networking permitted without license from IHS-,-,-125 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, re-ceiv

15、ed-terminated, etc.). (3) The one-way distance of the ship-ment. (4) The type of car (by URCS code). (5) The number of cars. (6) The car ownership (private or rail-road). (7) The commodity type (STCC code). (8) The weight of the shipment (in tons per car). (9) The type of movement (individual, multi

16、-car, or unit train). (10) A narrative addressing whether there is any feasible transportation al-ternative for the challenged move-ments. (11) For matters for which voluntary, binding arbitration is available pursu-ant to 49 CFR part 1108, the complaint shall state that arbitration was consid-ered,

17、 but rejected, as a means of resolv-ing the dispute. (b) Disclosure with simplified standards complaint. The complainant must pro-vide to the defendant all documents re-lied upon in formulating its assessment of a feasible transportation alternative and all documents relied upon to deter-mine the in

18、puts to the URCS Phase III program. (c) Multiple causes of action. Two or more grounds of complaint concerning the same principle, subject, or state-ment of facts may be included in one complaint, but should be stated and numbered separately. (d) Joinder. Two or more complain-ants may join in one co

19、mplaint against one or more defendants if their respec-tive causes of action concern substan-tially 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

20、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 and supplemental complaints. (a) Generally. An amended or supple-mental complaint may be tendered for filing by a complainant against a de-fendant or defen

21、dants named in the original complaint, stating a cause of action alleged to have accrued within the statutory period immediately pre-ceding the date of such tender, in favor of complainant and against the defend-ant or defendants. The time limits for responding to an amended or supple-mental complai

22、nt are computed pursu-ant to 1111.4 and 1111.5 of this part, as if the amended or supplemental com-plaint 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 dif-ferent rate reaso

23、nableness method-ology, among Three-Benchmark, Sim-plified-SAC or Full-SAC. If so amend-ed, the procedural schedule begins again under the new methodology as set forth at 1111.8 and 1111.9. How-ever, only one mediation period per complaint shall be required. 72 FR 51375, Sept. 7, 2007 1111.3 Service

24、. 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 ex-

25、press 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 serv

26、ed by confirmed facsimile or, if service is made by express overnight courier, on the date such complaint is actually re-ceived by the defendant. When the complaint involves more than one de-fendant, service of the complaint shall be deemed completed on the date on which all defendants have been ser

27、ved. An original and ten copies of the com-plaint should be filed with the Board VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without l

28、icense from IHS-,-,-126 49 CFR Ch. X (10110 Edition) 1111.4 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 a

29、t which they were delivered, certified by the person who made serv-ice. If complainant cannot serve the complaint, an original of each com-plaint 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 shou

30、ld 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 adv

31、ise the Board and the parties of the nature of the defense. In answer-ing a complaint challenging the rea-sonableness of a rail rate, the defend-ant should indicate whether it will con-tend that the Board is deprived of ju-risdiction to hear the complaint be-cause the revenue-variable cost per-centa

32、ge generated by the traffic is less than 180 percent, or the traffic is sub-ject to effective product or geographic competition. In response to a com-plaint filed under the simplified stand-ards, the answer must include the de-fendants preliminary estimate of the variable cost of each challenged mov

33、e-ment 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; cop

34、ies; 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 com-plainant and any other def

35、endants. (d) Cross complaints. A cross com-plaint alleging violations by other par-ties to the proceeding or seeking relief against them may be filed with the an-swer. An answer to a cross complaint shall be filed within 20 days after the service date of the cross complaint. The party shall serve co

36、pies of an an-swer to a cross complaint upon the other parties. (e) Failure to answer complaint. Aver-ments 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 comp

37、laint 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

38、a motion to make the answer more definite. Any motion to make more definite must specify the defects in the particular pleading and must de-scribe fully the additional information or details thought to be necessary. 1111.6 Satisfaction of complaint. If a defendant satisfies a formal com-plaint, eith

39、er 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 satis-fied. This action should be taken as ex-peditiously as possible. 1111.7 Investigations on the Boards own motion. (a)

40、 Service of decision. A decision in-stituting an investigation on the Boards own motion will be served by the Board upon respondents. (b) Default. If within the time period stated in the decision instituting an in-vestigation, a respondent fails to com-ply with any requirement specified in the decis

41、ion, the respondent will be deemed in default and to have waived any further proceedings, and the inves-tigation may be decided forthwith. VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot f

42、or ResaleNo reproduction or networking permitted without license from IHS-,-,-127 Surface Transportation Board, DOT 1111.9 1111.8 Procedural schedule in stand- alone cost cases. (a) Procedural schedule. Absent a spe-cific order by the Board, the following general procedural schedule will apply in st

43、and-alone cost cases: Day 0Complaint filed, discovery period be-gins. Day 7 or beforeConference of the parties convened pursuant to 1111.10(b). Day 20Defendants answer to complaint due. Day 75Discovery completed. Day 120Complainant files opening evidence on absence of intermodal and intramodal compe

44、tition, variable cost, and stand-alone cost issues. Defendant files opening evi-dence on existence of product and geo-graphic competition, and revenue-variable cost percentage generated by complain-ants traffic. Day 180Complainant and defendant file reply evidence to opponents opening evi-dence. Day

45、 210Complainant and defendant file re-buttal evidence to opponents reply evi-dence. (b) Conferences with parties. (1) The Board will convene a technical con-ference of the parties with Board staff prior to the filing of any evidence in a stand-alone cost rate case, for the pur-pose of reaching agree

46、ment on the op-erating 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 con-vene a conference of the parties with Board staff, after discovery reques

47、ts are served but before any motions to compel may be filed, to discuss dis-covery matters in stand-alone cost rate cases. The parties should jointly pro-pose a schedule for this discovery con-ference. 61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16, 1996, as amended at 63 FR 2639, Jan. 16, 1998; 68

48、 FR 17313, Apr. 9, 2003 1111.9 Procedural schedule in cases using simplified standards. (a) Procedural schedule. Absent a spe-cific order by the Board, the following general procedural schedules will apply in cases using the simplified standards: (1) In cases relying upon the Sim-plified-SAC methodo

49、logy: Day 0Complaint filed (including com-plainants disclosure). Day 10Mediation begins. Day 20Defendants answer to com-plaint (including defendants initial disclosure). Day 30Mediation ends; discovery be-gins. Day 140Defendants second disclo-sure. Day 150Discovery closes. Day 220Opening evidence. Day 280Reply evidence. Day 310Rebuttal evidence Day 320Technical conference (market dominance and merits). Day