82 FR 31271 - Publication Requirements for Agricultural Products; Rail Transportation of Grain, Rate Regulation Review

SURFACE TRANSPORTATION BOARD

Federal Register Volume 82, Issue 128 (July 6, 2017)

The Surface Transportation Board (Board) is adopting final rules amending its regulations on the publication of rate and service terms for agricultural products and fertilizer. The Board also denies a petition for reconsideration of the Board's policy statement regarding aggregation of claims and standing issues as they relate to rate complaint procedures.

[Federal Register Volume 82, Number 128 (Thursday, July 6, 2017)]
[Rules and Regulations]
[Pages 31271-31277]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-14180]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1300

[Docket No. EP 528 (Sub-No. 1); Docket No. EP 665 (Sub-No. 1)]


Publication Requirements for Agricultural Products; Rail 
Transportation of Grain, Rate Regulation Review

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (Board) is adopting final 
rules amending its regulations on the publication of rate and service 
terms for agricultural products and fertilizer. The Board also denies a 
petition for reconsideration of the Board's policy statement regarding 
aggregation of claims and standing issues as they relate to rate 
complaint procedures.

[[Page 31272]]


DATES: This rule is effective July 30, 2017.

ADDRESSES: Information or questions regarding these final rules should 
reference Docket No. EP 528 (Sub-No. 1) and be in writing addressed to 
Chief, Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Sarah Fancher at (202) 245-0355. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: In November 2006, the Board held a hearing 
in Rail Transportation of Grain, Docket No. EP 665, as a forum for 
interested persons to provide views and information about grain 
transportation markets. The hearing was prompted by concerns regarding 
rates and service issues related to the movement of grain raised by 
Members of Congress, grain producers, and other stakeholders. In 
January 2008, the Board closed that proceeding, reasoning that 
guidelines for simplified rate procedures had recently been adopted \1\ 
and that those procedures would provide grain shippers with a new 
avenue for rate relief. Rail Transp. of Grain, EP 665, slip op. at 5 
(STB served Jan. 14, 2008). The Board noted, however, that it would 
continue to monitor the relationship between carriers and grain 
interests, and that, if future regulatory action were warranted, it 
would open a new proceeding. Id.
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    \1\ Simplified Standards for Rail Rate Cases, EP 646 (Sub-No. 1) 
(STB served Sept. 5, 2007), aff'd sub nom. CSX Transp., Inc. v. STB, 
568 F.3d 236 (D.C. Cir. 2009), vacated in part on reh'g, 584 F.3d 
1076 (D.C. Cir. 2009).
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    In Rate Regulation Reforms, EP 715 (STB served July 25, 2012), the 
Board proposed several changes to its rate reasonableness rules. 
However, based on the comments received in that docket from grain 
shipper interests, which in part stated that the proposed changes did 
not provide meaningful relief to grain shippers, the Board commenced a 
separate proceeding in Rail Transportation of Grain, Rate Regulation 
Review, Docket No. EP 665 (Sub-No. 1) in December 2013 to deal 
specifically with the concerns of grain shippers. The Board invited 
public comment on how to ensure that the Board's existing rate 
complaint procedures are accessible to grain shippers and provide 
effective protection against unreasonable freight rail transportation 
rates. The Board also sought input from interested parties on grain 
shippers' ability to effectively seek relief for unreasonable rates, 
including proposals for modifying existing procedures, or for new 
alternative rate relief methodologies, should they be necessary. The 
Board received comments and replies from numerous parties.
    On May 8, 2015, the Board announced that it would hold a public 
hearing and invited parties to discuss rate reasonableness 
accessibility for grain shippers, as well as other issues, including: 
Whether the Board should allow multiple agricultural farmers and other 
agricultural shippers to aggregate their distinct rate claims against 
the same carrier into a single proceeding, and whether the disclosure 
requirement for agricultural tariff rates should be modified to allow 
for increased transparency. The public hearing was held on June 10, 
2015, and the Board received post-hearing supplemental comments from 
interested parties through June 24, 2015.
    Although much of the commentary and testimony received pertained to 
existing or proposed rate relief methodologies for agricultural 
commodity shippers, the comments and testimony also touched on various 
other issues related to grain. To address the commentary on rate relief 
methodologies, the Board issued an Advance Notice of Proposed 
Rulemaking, which proposed to develop a new rate reasonableness 
methodology for use in very small disputes, in a decision served on 
August 31, 2016, in Docket No. EP 665 (Sub-No. 1) and Expanding Access 
to Rate Relief, Docket No. EP 665 (Sub-No. 2). In response to comments 
on other grain-related matters, the Board issued a Notice of Proposed 
Rulemaking (NPRM), which proposed amendments to its regulations 
addressing publication of rates for agricultural products and 
fertilizer, and a policy statement, which addressed standing and 
aggregation of claims for rate complaint procedures, in a decision 
served on December 29, 2016 in Docket Nos. EP 528 (Sub-No. 1) and EP 
665 (Sub-No. 1). The proposed rules were published in the Federal 
Register, 82 FR 805 (Jan. 4, 2017), and parties submitted comments in 
response to the NPRM.\2\ On January 24, 2017, the Board received a 
petition for reconsideration of its policy statement regarding 
aggregation of claims and standing from Larry R. Miller, Jr., for and 
on behalf of SMART/TD General Committee of Adjustment GO-386 (SMART-
TD).
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    \2\ The Board received comments from the following: Alliance for 
Rail Competition (joined by National Farmers Union, Idaho Barley 
Commission, Idaho Wheat Commission, Montana Farmers Union, North 
Dakota Farmers Union, South Dakota Farmers Union, Minnesota Farmers 
Union, Wisconsin Farmers Union, Nebraska Wheat Board, Oklahoma Wheat 
Commission, Oregon Wheat Commission, South Dakota Wheat Commission, 
Texas Wheat Producers Board, Washington Grain Commission, Wyoming 
Wheat Marketing Commission, North Dakota Grain Dealers Association, 
Idaho Grain Producers Association, USA Dry Pea and Lentil Council, 
US Dry Bean Council, and US Glass Producers Transportation Council) 
(collectively, ARC); Montana Department of Agriculture; National 
Grain and Feed Association (NGFA); The Fertilizer Institute (TFI); 
Union Pacific Railroad Company (UP); and U.S. Department of 
Agriculture (USDA). The Board also received a letter from BNSF 
Railway Company (BNSF) and a reply from ARC.
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    After consideration of the parties' comments, the Board is adopting 
final rules amending its regulations governing the publication of rate 
and service terms for agricultural products and fertilizer to require 
Class I railroads to publish such rates and service terms on their Web 
sites. This change modernizes the Board's regulations to reflect the 
fact that Class I railroads today are more likely to disseminate 
information to customers and the general public using company Web 
sites. For the reasons discussed below, the Board also denies SMART-
TD's petition for reconsideration of the policy statement on standing 
and aggregation of claims for rate complaints.

Final Rules Regarding Agricultural Rate Publication

    In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 
803, Congress eliminated the tariff requirements that were formerly 
applicable to rail carriers and imposed instead certain obligations to 
disclose common carriage rates and service terms. One of these 
requirements, applicable only to the transportation of agricultural 
products, is that rail carriers must publish, make available, and 
retain for public inspection, their common carrier rates, schedules of 
rates, and other service terms, and any proposed and actual changes to 
such rates and service terms. 49 U.S.C. 11101(d). The statute states 
that the term ``agricultural products'' includes grain, as defined in 7 
U.S.C. 75 and all products thereof, and fertilizer. Id.
    The Board adopted regulations to implement the requirements of 
section 11101(d), in Disclosure, Publication, & Notice of Change of 
Rates & Other Service Terms for Rail Common Carriage (Disclosure), 1 
S.T.B. 153 (1996). Those regulations are codified at 49 CFR 1300.5. 
Under those regulations, the information required to be published 
``must include an accurate description of the services offered to the 
public; must provide the specific

[[Page 31273]]

applicable rates (or the basis for calculating the specific applicable 
rates), charges, and service terms; and must be arranged in a way that 
allows for the determination of the exact rate, charges, and service 
terms applicable to any given shipment (or to any given group of 
shipments).'' 49 CFR 1300.5(b). Rail carriers must make the information 
available, without charge, during normal business hours, at offices 
where they normally keep rate information, 49 CFR 1300.5(c), and to all 
persons who have subscribed to a publication service operated either by 
the rail carrier itself or by an agent acting at the rail carrier's 
direction, 49 CFR 1300.5(d).\3\
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    \3\ The Board noted when adopting these regulations that the 
publication requirements were applicable only to non-exempted 
agricultural products and fertilizer. Disclosure, 1 S.T.B. at 160. 
Many agricultural commodities and products have been exempted as a 
class from the Board's regulations. See 49 CFR 1039.10.
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    In the NPRM, the Board proposed amendments to 49 CFR 1300.5 to 
update the publication requirements for the transportation of 
agricultural products and fertilizer. The Board proposed to revise 
these publication requirements, which were adopted in 1996, to reflect 
the fact that Class I railroads often use company Web sites or other 
applications to disseminate information to customers and the general 
public, as opposed to publication methods that likely were more 
prevalent at the time of promulgation (e.g., subscription services and 
maintenance of paper documents at railroad offices). As a result, the 
Board proposed to require Class I rail carriers to publish the 
information required under section 1300.5(a) on their Web sites.\4\ All 
rail carriers would also continue to be required to make agricultural 
rate and service information available at their public offices. See 49 
CFR 1300.5(c).
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    \4\ The NPRM did not propose to require Class II and Class III 
carriers to comply with the online publication requirement.
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    In addition, the proposed amendments requiring Web site publication 
for Class I railroads would require that agricultural rate and service 
information be made available to ``any person,'' as currently required 
by section 1300.5, so that the rate information published online would 
be readily available to anyone, regardless of whether a person is a 
current or potential customer or receiver of a railroad. Finally, the 
proposed rules informed parties having difficulty accessing the 
agricultural rates and service terms to contact the Board's Office of 
Public Assistance, Governmental Affairs, and Compliance (OPAGAC).
    Commenters generally support the proposed amendments to 49 CFR 
1300.5,\5\ subject to certain requests for modifications and 
clarifications. Below the Board addresses parties' comments on (1) 
registration requirements and related issues, (2) the definition of 
``anyone'' and ``any person,'' (3) machine-readable formats, and (4) 
Class II and III rail carriers' publication requirements. In response 
to parties' comments, the Board modifies the rules proposed in the 
NPRM. The text of the final rules is below.
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    \5\ See ARC Reply 2 (``All commenters support the Board's 
proposed amendments, though some suggest improvements.''); Montana 
Department of Agriculture Comment 1 (``[T]he Department supports the 
proposal by the Board to make rate information available online.''); 
NGFA Comment 1 (``NGFA commends and strongly supports the Board's 
proposal to update its 20-year-old rules to require that all Class I 
railroads make publicly available online their common carrier tariff 
rates, charges and other service terms, as well as subsequent 
changes to such rates, charges and terms, for agricultural products 
and fertilizer.''); TFI Comment 2 (``TFI supports updating the 
[Board] regulations to reflect . . . modern practices.''); UP 
Comment 1 (``In general, UP supports the proposals and statements in 
the Notice.''); USDA Comment 2 (``USDA appreciates and supports the 
Board's action to update its regulatory language regarding the 
publication of rate and service terms for agricultural products and 
fertilizer. . . .'').
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    Registration Requirements and Related Issues. Shippers seek 
clarification on the extent to which railroads may use registration 
features as a prerequisite to viewing agricultural rate and service 
information online. TFI asks the Board to find that it is not 
appropriate for railroads to impose ``cumbersome and time-consuming 
registration requirements'' to access public tariffs. (TFI Comment 4.) 
ARC states that railroads should not be allowed to impose burdensome 
registration requirements that ask for detailed information, such as a 
``showing of `need' or `relevance,' '' and that access to agricultural 
rate and service information should be ``simple and expeditious.'' (ARC 
Comment 9; ARC Reply 4 (comparing the proposed rules to the requirement 
in 49 CFR 1300.2(b) that information ``must be provided 
immediately'').) ARC further comments that, if permitted to use 
registration requirements, railroads could discourage or deny certain 
persons from access to online tariffs. (ARC Comment 9; ARC Reply 4.)
    Similarly, NGFA requests that the Board address ``existing barriers 
and shortcomings that exist on some Class I railroads' Web sites that 
substantively impede access to tariff rate information and service 
terms.'' (NGFA Comment 4.) NGFA states that it does not object to 
railroads using registration features, but that the final rules should 
require these registration features to provide for ``immediate and 
unrestricted access to any person--not just current or potential 
customers--of all tariff rates, pricing information and all applicable 
service terms and conditions for agricultural commodities and 
fertilizer.'' (Id. at 5-6.) NGFA also states that it supports the 
Board's proposal to direct parties having difficulty accessing this 
information to contact OPAGAC, but that if the final rules require 
railroads ``to remove existing barriers and hurdles to accessing such 
information,'' there should be fewer such requests. (Id. at 6.)
    The Board understands shippers' concerns regarding the potential 
use of registration requirements to restrict online access to 
agricultural rate and service information. In the NPRM, the Board 
sought to update 49 CFR 1300.5 to make such information more readily 
accessible by adopting modern practices of disseminating information. 
But, as shippers note in their comments, the use of registration 
features could be used to deny or discourage certain persons from 
accessing agricultural rate and service information. (See, e.g., ARC 
Comment, V.S. Whiteside 12 (discussing railroads' existing registration 
requirements).) The Board finds that denial (or unreasonable delay) of 
access through such use of registration requirements would undermine 
the statutory authority for, and regulatory purpose of, 49 CFR 1300.5--
which is to make agricultural rate and service information available 
for public inspection. See 49 U.S.C. 11101(d).
    Accordingly, the Board will modify the final rules to include 
language allowing railroads to use registration requirements that are 
not unduly burdensome and that provide timely and unrestricted access 
to agricultural rate and service information to any person. See text of 
rules below (stating ``Class I rail carriers may require persons 
accessing such information to register, but such registration 
requirements may not be overly burdensome, must provide timely access 
to the information, and cannot prevent specific types of persons from 
obtaining the information.''). Under this standard, the Board would not 
prohibit railroads from using registration features, but would require 
that registration requirements be structured in a manner that allows 
anyone who requests it to view the agricultural rate and service 
information.\6\ For example, registration features that require a 
showing of ``need'' or ``relevance,'' or proof that a person or entity 
is a

[[Page 31274]]

customer or potential customer, as a prerequisite to accessing 
agricultural rate and service information would be prohibited. However, 
registration requirements that require a person to provide basic 
information, such as his or her name and email address, without 
requiring a certain type of email address, would be permissible.
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    \6\ This standard is consistent with rules proposed in the NPRM. 
See NPRM at 5 n.6.
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    The Board will also adopt as part of the final rules a provision 
suggesting that persons having difficulty accessing such information 
contact OPAGAC.\7\ The Board encourages parties to contact OPAGAC if 
they encounter registration requirements that are unduly burdensome or 
fail to provide timely access to agricultural rate and service 
information. The Board believes such an approach will help ensure that 
such information is made readily available to the public.
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    \7\ Although the NPRM proposed to say that persons having 
difficulty accessing agricultural rate and service information 
``should'' contact OPAGAC, the final rules provide that such persons 
``may'' contact OPAGAC for assistance.
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    In addition, commenters seek clarification as to where and how 
agricultural rate and service information must be posted. ARC asks the 
Board to revise the final rules to indicate that online access must be 
made available at no charge and to clarify that online tariff 
information, once obtained, may be freely shared. (ARC Comment 6, 9; 
see also ARC Comment, V.S. Whiteside 15.) ARC further states that 
online access under section 1300.5(c) should mean that online notice of 
``scheduled changes in rates, charges and service terms'' must be 
provided, as currently required by section 1300.5(a). (ARC Reply 2-3.)
    Other commenters also ask the Board to prohibit railroads from 
placing ``public tariffs in non-public areas of a railroad's Web 
site,'' (TFI Comment 4), or require Class I railroads to clearly 
indicate on their Web site homepages whether and where interested 
persons can access public tariff, rate, and service information online, 
(NGFA Comment 5-6). Similarly, USDA states that it should be clear 
``where and how shippers and the public [can] access'' agricultural 
rate information on a railroad's Web site. (USDA Comment 3.) TFI also 
asks the Board to clarify what constitutes making this ``information 
available to any person online.'' (TFI Comment 2.)
    The Board confirms that online access to agricultural rate and 
service information must be available at no charge and that, once 
obtained, this information may be freely shared. Accordingly, the Board 
will modify the final rules to state that agricultural rate and service 
information must be made available online ``without charge.'' See text 
of rules below. Additionally, the Board confirms that online access 
under the revised section 1300.5(c) means that Class I carriers must 
provide online notice of ``scheduled changes in rates, charges and 
service terms.'' To be clear, the Board intends for the term 
``information'' in revised section 1300.5(c) to refer to all of the 
information currently required in Sec.  1300.5(a) and (b). Indeed, none 
of the changes proposed in the NPRM were intended to change the type of 
information that carriers must make available, only to require that it 
be provided online in addition to the current requirements. However, to 
further clarify this, the Board has added a reference to Sec.  
1300.5(a) and (b) in the revised version of Sec.  1300.5(c).
    Concerning where agricultural rate and service information is 
posted on railroads' Web sites, the final rules have been modified to 
require that this information be made ``readily'' available online. The 
Board believes this language sufficiently ensures that persons can 
access agricultural rate and service information in a reasonable 
manner, without the Board prescribing how and where railroads, each of 
which has a distinct Web site, must place such information. 
Accordingly, to maintain flexibility for implementation by Class I 
railroads, the Board declines to include in the final rules other 
specific requirements suggested by commenters.
    Finally, with respect to what constitutes ``mak[ing] th[is] 
information available to any person online,'' railroads may post 
agricultural rate and service information on their Web sites in PDF or 
spreadsheet format, or in any other format that is readily accessible. 
As discussed in more detail below, the Board will not specify in the 
final rules a method or format for posting this information, as rail 
carriers may have different preferences depending on their Web sites.
    Definitions of ``Anyone'' and ``Any Person.'' UP asks that the 
Board clarify whether the definition of ``anyone,'' as used in the text 
of the NPRM, includes brokers, trade associations, law firms, or other 
carriers. UP also asks whether the definition of ``any person,'' as 
used in section 1300.5, is limited to current or potential rail 
customers or rail receivers and, if not, whether the information that 
is required to be made public in section 1300.5 must be made available 
to anyone. (UP Comment 2.) On reply, ARC asks the Board to find that 
``any person,'' as used in the regulations, should include all persons, 
regardless of whether they are customers or potential customers. (ARC 
Reply 3.)
    The Board's use of the term ``anyone'' in the NPRM, includes, but 
is not limited to, brokers, trade associations, law firms, and other 
carriers. The definition of ``any person'' in Sec.  1300.5 (which is 
not changed in these final rules) likewise is not limited to current or 
potential rail customers or rail receivers.\8\ Rather, the information 
subject to Sec.  1300.5 must be made available to anyone--meaning that 
any person, company, association, governmental entity, or other entity 
must be able to access the tariff and rate information for agricultural 
commodities and fertilizer.
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    \8\ The Board uses the terms ``anyone'' and ``any person'' 
interchangeably in this decision and the NPRM.
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    Machine-Readable Format. USDA states that the requirement under 
Sec.  1300.5 to make agricultural rate and service information 
available for public inspection means that the records must (1) be 
available to the public and (2) provided in a useable form for 
examination and inspection. (USDA Comment 2.) According to USDA, some 
Class I carriers offer ``pricing portals'' on their Web sites, which 
provide ``a handy way to search and find rates given the shipment's 
criteria, such as product, origin, and destination.'' (Id. at 3.) 
However, other ``railroads . . . provide [this] information, such as 
schedules of rates, in PDF-form, which is less accessible to shippers 
and the public, and is difficult to use.'' (Id. at 2-3.) As a result, 
USDA recommends that the Board equire railroads to retain tariff rate 
records where appropriate in a machine-readable format. (Id.)
    The Board commends railroads for providing ``pricing portals'' on 
their Web sites, which offer enhanced functionality that enables users 
to search and find rates based on various shipment criteria.\9\ At this 
time, however, the Board declines to require Class I railroads to 
provide information subject to Sec.  1300.5 in a ``machine-readable'' 
or sortable/searchable format. The proposed and final rules seek to 
update the requirements of Sec.  1300.5 to modern practices of posting 
information online. Without additional information on the various 
formats a machine-readable or sortable/searchable requirement could 
take, the burden associated with such a requirement is unclear. The 
Board therefore declines to adopt such a requirement in the final 
rules. However, the Board nonetheless encourages Class I railroads to 
provide,

[[Page 31275]]

or to continue to provide, pricing portals.
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    \9\ See BNSF Letter, March 20, 2017 (describing BNSF's pricing 
portal and its efforts to streamline its Web site's registration 
features).
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    Class II and III Rail Carriers' Publication Requirements. TFI, 
NGFA, and ARC ask the Board to require Class II and III rail carriers 
that already publish tariffs online to abide by the same online 
publication requirements as Class I railroads. (ARC Comment 8; NGFA 
Comment 6; TFI Comment 4; ARC Reply 3. See also ARC Comment, V.S. 
Whiteside 19.) ARC states that it is not aware of any hardships that 
such a requirement would impose on these Class II and III rail 
carriers, and TFI notes that the ``shortline carriers with which TFI 
members regularly interact already meet such standards.'' (TFI Comment 
4; ARC Reply 3.)
    Although the Board encourages Class II and III rail carriers to 
provide agricultural rate and service information online as they are 
able, the Board declines to make this a requirement at this time. Class 
II and III rail carriers are diverse and have fewer resources than 
Class I railroads. The record in Docket No. EP 528 (Sub-No. 1) does not 
establish whether such a requirement would be unduly burdensome. 
Moreover, such a requirement could present enforcement issues because 
it would be unevenly applicable, given that some Class II and III 
carriers publish tariffs online today while others do not.

Policy Statement on Aggregation of Claims and Standing Issues

    In the December 2016 decision, the Board issued a policy statement, 
addressing standing and aggregation of claims, in response to questions 
and comments previously raised by stakeholders in Docket No. EP 665 
(Sub-No. 1). The Board's policy statement provided:
     Under section 11701(b), grain producers (and other 
indirectly harmed complainants) that file rate complaints cannot be 
disqualified due to the absence of direct damage;
     Indirectly harmed complainants must nevertheless have 
standing to proceed with a complaint;
     Although not bound by the requirements of judicial 
standing, the Board may look to those requirements to guide (though not 
necessarily govern) its standing determinations;
     Grain producers should be able to establish standing 
before the Board on a case-by-case basis, given that the price 
producers receive from elevators for their grain is generally affected 
at least to some extent by the transportation rate the railroad charges 
to the grain elevators; and
     Parties may seek to aggregate their rate claims, and the 
Board will make such determinations on whether such claims are properly 
aggregated on a case-by-case basis, considering factors such as whether 
the claims or defenses involve common questions of law or fact, whether 
administrative efficiencies could be achieved through aggregation, and 
the number of claims being aggregated.

NPRM at 5-8.
    In response, parties comment that the Board should provide further 
clarification on certain issues related to standing and aggregation of 
claims in rate cases and, in its petition for reconsideration, SMART-TD 
asks the Board to reopen, reconsider, and vacate the policy statement. 
Below the Board addresses parties' comments and SMART-TD's petition for 
reconsideration.
    Parties' Comments. ARC asks the Board to clarify the issue of 
representational or parens patriae standing. ARC also raises issues 
related to reparations \10\ and the need for a reasonableness test that 
constrains excessive rates on captive shippers.\11\ UP seeks 
clarification regarding how the policy statement will affect rate 
relief in Three-Benchmark cases, which is capped at $4 million (indexed 
annually for inflation), for complainants that did not suffer direct 
damage. UP also seeks clarification on whether third-party discovery 
will be readily available in rate cases where the complainant does not 
have possession, custody, or control of information relevant to the 
proceeding. (UP Comment 2-4.) On reply, ARC argues that these issues 
should be decided on a case-by- case basis, as these questions are 
difficult to answer in the abstract and doing so would fail to serve 
the public interest. (ARC Reply 2, 4-7.)
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    \10\ ARC claims that the Association of American Railroads (AAR) 
previously stated in Docket No. EP 665 (Sub-No. 1) in 2014 that 
``reparations are available only to the person responsible for the 
freight charges, suggesting that only a shipper or consignee would 
have standing to seek reparations'' and therefore ``the Board lacks 
authority to prescribe a rate on the basis of a complaint by a party 
other than a shipper.'' (ARC Comment 13-14.) ARC states that under 
the AAR's interpretation, non-shippers would be permitted to file 
rate complaints, but could not be awarded any relief. ARC claims 
that this was not the intent of Congress in 49 U.S.C. 11701(b). (Id. 
at 14.)
    \11\ ARC states that greater clarity on standing is ``necessary 
but not sufficient'' and states that it needs ``one or more tests of 
reasonableness that constrain excessive rates on captive 
agricultural products and fertilizer shipments, even where the rates 
apply to groups of shippers, or to States or regions.'' (ARC Comment 
10; see id. at 3-4; ARC Reply 5.)
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    Concerning ARC's comments related to reparations, the Board's 
policy statement did not address the issue of reparations, including 
which parties are eligible to receive them, and the Board declines to 
do so here. See NPRM at 6 n.7. (ARC Comment 13.) Moreover, ARC's 
request for a new rate reasonableness test is beyond the scope of the 
policy statement. Finally, ARC's and UP's other comments raise 
considerations that are more appropriately addressed on a case-by-case 
basis, rather than a policy statement.
    Petition for Reconsideration. In its request to vacate the policy 
statement, SMART-TD argues that the Board materially erred in adopting 
a test for determining whether a party has standing to file a rate 
complaint.\12\ SMART-TD claims that the policy statement failed to 
``adequately set forth the various positions of the rail carriers on 
the standing issue'' and argues that the Board's ``legal reasoning for 
issuance of its standing policy statement is invalid.'' (SMART-TD Pet. 
6, 10.) ARC states similar concerns, noting that the Board's policy 
statement cites the three-part test for standing in federal court, 
which is more restrictive than the standing requirement applicable to 
proceedings before the Board. (ARC Comment 11-13.)
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    \12\ Contrary to SMART-TD's statement that the ``policy 
statement is not restricted to grain rate matters, but applies 
generally to complaint proceedings,'' (SMART-TD Pet. 3), the Board's 
policy statement applies only to rate complaints brought under 49 
U.S.C. 11701(b). See, e.g., NPRM at 1 (stating that ``[t]he Board 
also clarifies its policies on standing and aggregation of claims as 
they relate to rate complaint procedures'').
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    SMART-TD's petition for reconsideration and related comments raise 
concerns that involve case-specific considerations (some of which 
implicate proceedings other than the particular type of rate complaints 
that were the subject of the Board's policy statement). Accordingly, 
the Board will not further address these issues at this time, or reopen 
or vacate the policy statement in response to SMART-TD's petition.

Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, 
the Board will seek approval from the Office of Management and Budget 
(OMB) for this collection in a separate notice. Any comments received 
by the Board from that notice will be forwarded to OMB for its review 
and will be posted under Docket No. EP 528 (Sub-No. 1).

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, 
generally requires a description and analysis of new rules that would 
have a significant

[[Page 31276]]

economic impact on a substantial number of small entities. In drafting 
a rule, an agency is required to: (1) Assess the effect that its 
regulation will have on small entities; (2) analyze effective 
alternatives that may minimize a regulation's impact; and (3) make the 
analysis available for public comment. Sections 601-604. Under section 
605(b), an agency is not required to perform an initial or final 
regulatory flexibility analysis if it certifies that the proposed or 
final rules will not have a ``significant impact on a substantial 
number of small entities.''
    Because the goal of the RFA is to reduce the cost to small entities 
of complying with federal regulations, the RFA requires an agency to 
perform a regulatory flexibility analysis of small entity impacts only 
when a rule directly regulates those entities. In other words, the 
impact must be a direct impact on small entities ``whose conduct is 
circumscribed or mandated'' by the proposed rule. White Eagle Coop. 
Ass'n v. Conner, 553 F.3d 467, 478, 480 (7th Cir. 2009). An agency has 
no obligation to conduct a small entity impact analysis of effects on 
entities that it does not regulate. United Distrib. Cos. v. FERC, 88 
F.3d 1105, 1170 (D.C. Cir. 1996).
    In the NPRM, the Board certified under 5 U.S.C. 605(b) that the 
proposed rules would not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA.\13\ 
The Board explained that the proposed rule would not place any 
additional burden on small entities because the proposed rule of 
requiring rate information to be published online would be limited to 
Class I rail carriers. No parties submitted comments on this issue. A 
copy of the NPRM was served on the U.S. Small Business Administration 
(SBA).
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    \13\ Effective June 30, 2016, for the purpose of RFA analysis 
for rail carriers subject to Board jurisdiction, the Board defines a 
``small business'' as a rail carrier classified as a Class III rail 
carrier under 49 CFR 1201.1-1. See Small Entity Size Standards Under 
the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) 
(with Board Member Begeman dissenting). Class III carriers have 
annual operating revenues of $20 million or less in 1991 dollars, or 
$35,809,698 or less when adjusted for inflation using 2016 data. 
Class II rail carriers have annual operating revenues of less than 
$250 million in 1991 dollars or less than $447,621,226 when adjusted 
for inflation using 2016 data. The Board calculates the revenue 
deflator factor annually and publishes the railroad revenue 
thresholds on its Web site. 49 CFR 1201.1-1.
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    The final rules adopted here revise the rules proposed in the NPRM. 
However, the same basis for the Board's certification of the proposed 
rules applies to the final rules adopted here. The final rules would 
not create a significant impact on a substantial number of small 
entities, as the regulations would only specify procedures related to 
Class I railroads and do not mandate or circumscribe the conduct of 
small entities. Therefore, the Board certifies under 5 U.S.C. 605(b) 
that the final rules will not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA. A 
copy of this decision will be served upon the Chief Counsel for 
Advocacy, Office of Advocacy, U.S. Small Business Administration, 
Washington, DC 20416.
    It is ordered:
    1. The final rules set forth below are adopted and will be 
effective July 30, 2017.
    2. SMART-TD's petition for reconsideration of the policy statement 
is denied.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    4. This decision is effective on July 30, 2017.

List of Subjects in 49 CFR Part 1300

    Administrative practice and procedure, Agricultural commodities, 
Railroads, Reporting and recordkeeping requirements.


    Decided: June 28, 2017.

    By the Board, Board Members Begeman, Elliott, and Miller. Board 
Member Miller dissented in part with a separate expression.
Rena Laws-Byrum,
Clearance Clerk.

Board Member Miller, dissenting in part:
    I dissent from the Board's decision not to require that the 
agricultural tariff data be provided in a machine-readable format.
    The Board decided to initiate this rulemaking because of its 
concern that the existing regulations make the agricultural tariffs 
less accessible than they should be. Yet the Board undercuts the value 
of this update to the regulations by allowing railroads to continue to 
provide the information in a less accessible format. As the USDA points 
out, having this information in a machine-readable format is important. 
The information contained in the tariffs can be vast and making it 
machine-readable would allow users to search, sort, and filter the data 
based on their individual needs. The federal government itself has 
recognized the value of providing data in machine-readable formats.\1\ 
I disagree with the majority's decision not to make this a requirement 
here.
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    \1\ See Exec. Order No. 13,642, Making Open and Machine Readable 
the New Default for Government Information, 78 FR 28111 (May 9, 
2013) (``To promote continued job growth, Government efficiency, and 
the social good that can be gained from opening Government data to 
the public, the default state of new and modernized Government 
information resources shall be open and machine readable.''); Office 
of Management and Budget (OMB) Circular No. A-130, Managing Federal 
Information as a Strategic Resource, at 14, revised July 28, 2016 
(agencies must ``[p]ublish[ ] public information online in a manner 
that promotes analysis and reuse for the widest possible range of 
purposes, meaning that the information is publicly accessible, 
machine-readable, appropriately described, complete, and timely.'').
---------------------------------------------------------------------------

    First, the majority states that ``[t]he proposed . . . rules seek 
to update the requirements of Sec.  1300.5 to modern practices of 
posting information online.'' The majority's implication appears to be 
that requiring information in a machine-readable format would be 
outside the scope of the NPRM. Although the Board did not expressly 
propose requiring railroads to provide tariff information in a machine-
readable format in the NPRM, that would not have prevented the Board 
from adopting this requirement as part of the final rules, as the 
requirement would have been a logical outgrowth of the NPRM.\2\
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    \2\ In CSX Transp., Inc. v. Surf. Transp. Bd., 584 F.3d 1076, 
1079 (D.C. Cir. 2009), the court held that a final rule qualifies as 
a logical outgrowth if interested parties ``should have 
anticipated'' that the change was possible, and that the final rule 
was not ``surprisingly distant'' from the proposal rule. The Board 
stated that it was initiating the NPRM (at 4-5) because it believed 
that ``it is appropriate to update our regulations to reflect these 
modern practices.'' Providing information in a machine-readable 
format is clearly a ``modern practice'' in line with the Board's 
goal of updating its regulations in this area, and thus should have 
been anticipated. Machine-readability is also so closely tied to 
issues that were expressly proposed in the NPRM that it could not be 
claimed that such a requirement would have been surprisingly distant 
from the proposed rule.
---------------------------------------------------------------------------

    The second reason given by the majority for not requiring that 
carriers provide information in machine-readable format is that the 
burden of such a requirement is ``unclear.'' With today's technology, 
it is hard to imagine that it would be burdensome for major U.S. 
corporations to put information in a machine-readable format.
    For these reasons, I respectfully dissent from the majority on this 
issue.
    For the reasons set forth in the preamble, the Surface 
Transportation Board amends its title 49, chapter X, subchapter D, of 
the Code of Federal Regulations as follows:

[[Page 31277]]

PART 1300--DISCLOSURE, PUBLICATION, AND NOTICE OF CHANGE OF RATES 
AND OTHER SERVICE TERMS FOR RAIL COMMON CARRIAGE

0
1. The authority citation for part 1300 is revised to read as follows:

    Authority:  49 U.S.C. 1321 and 11101(f).


0
2. In Sec.  1300.5, amend paragraph (c) by adding three sentences at 
the end of the paragraph to read as follows:


Sec.  1300.5  Additional publication requirement for agricultural 
products and fertilizer.

* * * * *
    (c) * * * If a rail carrier is a Class I rail carrier, it must also 
make the information readily available online to any person without 
charge. Class I rail carriers may require persons accessing such 
information to register, but such registration requirements may not be 
overly burdensome, must provide timely access to the information, and 
cannot prevent specific types of persons from obtaining the 
information. Persons having difficulty accessing the information 
required by paragraphs (a) and (b) of this section may either send a 
written inquiry addressed to the Director, Office of Public Assistance, 
Governmental Affairs, and Compliance or telephone the Board's Office of 
Public Assistance, Governmental Affairs, and Compliance.
* * * * *
[FR Doc. 2017-14180 Filed 7-5-17; 8:45 am]
 BILLING CODE 4915-01-P