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Ninth Circuit Rules that Oregon Tax Discriminated Against BNSF in Violation of 4-R Act

On July 8, the United States Court of Appeals for the Ninth Circuit issued a decision affirming a district court ruling in favor of BNSF Railway Company (BNSF) regarding the railroad’s challenge to Oregon’s tax on intangible personal property as a discriminatory tax on railroads in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  BNSF Ry. Co. v. Or. Dep’t of Revenue, 965 F.3d 681 (9th Cir. 2020).

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The Board Issues a Final Rule in the Market Dominance Streamlined Approach Proceeding

The Board adopted a final rule establishing a streamlined approach for pleading market dominance in rate reasonableness proceedings.  Market Dominance Streamlined Approach, Ex Parte 756 (STB served Aug. 3, 2020).  This decision finalized a notice of proposed rulemaking (NPRM) served in this proceeding on September 12, 2019.  The Board received comments from over 20 entities on the NPRM.  As explained below, the Board in the final rule adopted the NPRM proposals with minor modifications.

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The Board Withdraws Proposal to Revise its Methodology for Determining the Railroad Industry’s Cost of Capital

On June 23, the Board withdrew its proposal to revise its methodology for calculating the cost-of-equity component of the railroad industry’s cost of capital by incorporating a third model, based on comments and replies the Board received in response to the notice of proposed rulemaking (NPRM).  Revisions to the Board’s Methodology for Determining the R.R. Indus.’s Cost of Capital, Ex Parte 664 (Sub-No. 4) (STB served June 23, 2020). 

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The Board and the FRA Address COVID-19 Impacts

Both the Surface Transportation Board (STB or Board) and the Federal Railroad Administration (FRA) have taken certain steps to address impacts of the COVID-19 pandemic.  The Board announced that, starting on March 17, 2020, all filings and other submissions should be made electronically.  Until further notice, the Board will not be accepting paper filings or providing paper copies of any decisions or other materials.  STB Homepage, https://prod.stb.gov/.  The STB has also granted certain deadline extensions in proceedings where requested due to COVID-19 impacts.  E.g., Ass’n of Am. R.Rs.—Petition for Declaratory Order, FD 36369 (STB served March 19, 2020); Petition by the Nat’l R.R. Passenger Corp. (Amtrak) for Proceeding under 49 U.S.C. § 24903(c)(2), FD 36332 (STB served March 17, 2020). 

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