82 FR 805 - Publication Requirements for Agricultural Products; Rail Transportation of Grain, Rate Regulation Review

SURFACE TRANSPORTATION BOARD

Federal Register Volume 82, Issue 2 (January 4, 2017)

Page Range		805-809
FR Document		2016-31906
Through this Notice of Proposed Rulemaking, the Surface Transportation Board (Board or STB) proposes amendments to its regulations governing the publication, availability, and retention for public inspection of rail carrier rate and service terms for agricultural products and fertilizer. The Board also clarifies its policies on standing and aggregation of claims as they relate to rate complaint procedures.
Federal Register, Volume 82 Issue 2 (Wednesday, January 4, 2017)
[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)]
[Proposed Rules]
[Pages 805-809]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31906]


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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: Notice of proposed rulemaking; policy statement.

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SUMMARY: Through this Notice of Proposed Rulemaking, the Surface 
Transportation Board (Board or STB) proposes amendments to its 
regulations governing the publication, availability, and retention for 
public inspection of rail carrier rate and service terms for 
agricultural products and fertilizer. The Board also clarifies its 
policies on standing and aggregation of claims as they relate to rate 
complaint procedures.

DATES: Comments are due February 21, 2017; replies are due by March 20, 
2017.

ADDRESSES: Comments may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise comply with the instructions at 
the E-FILING link on the Board's Web site, at http://www.stb.gov. Any 
person submitting a filing in the traditional paper format should send 
an original and 10 copies to: Surface Transportation Board, Attn: 
Docket No. EP 528 (Sub-No. 1), 395 E Street SW., Washington, DC 20423-
0001. Copies of written comments will be available for viewing and 
self-copying at the Board's Public Docket Room, Room 131, and will be 
posted to the Board's Web site.

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. at 5.
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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.), 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 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

[[Page 806]]

testimony also touched on various other issues related to the rail 
transportation of grain. In order to address the comments pertaining to 
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 Nos. EP 665 (Sub-No. 1) 
and EP 665 (Sub-No. 2). Additionally, based on the comments and 
testimony received regarding other issues related to the rail 
transportation of grain,\2\ the Board today proposes amendments to its 
regulations on publication of rates for agricultural products and 
fertilizer in a new proceeding, Docket No. EP 528 (Sub-No. 1), and sets 
forth policy statements regarding aggregation of claims and standing. 
The Board's proposals and clarifications with respect to these issues 
are discussed below. Finally, the Board is terminating the proceeding 
in Docket No. EP 665 (Sub-No. 1).
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    \2\ For a list of the numerous parties that have participated in 
the Docket No. EP 665 (Sub-No. 1) proceeding at various stages, as 
set forth below. To the extent this decision refers to parties by 
abbreviations, those abbreviations are listed below.
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Notice of Proposed 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 
Sec.  11101(d), in Disclosure, Publication, & Notice of Change of Rates 
& Other Service Terms for Rail Common Carriage, 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 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 also 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 regulation. See 49 CFR 1039.10.
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    In announcing the June 2015 hearing in Docket No. EP 665 (Sub-No. 
1), the Board invited parties to discuss whether there are any ways in 
which the Board could create greater transparency for grain shippers 
regarding how railroads set rates. Specifically, the Board invited 
parties to address the disclosure requirements for agricultural rates 
under 49 CFR 1300.5 and whether this requirement should be modified to 
allow for increased transparency.
    Shippers generally had differing opinions as to the availability of 
agricultural tariff rates and their transparency. On the one hand, ARC 
asserts that there is a ``[n]eed for increased access to railroad 
public documents such as tariffs which serve to provide education (to 
agricultural producers, small and large elevators, and merchandisers)'' 
and for ``access to more complete summaries of transportation 
contracts, and operational data.'' (ARC Opening, V.S. Whiteside 8.) In 
its testimony, ARC raised concerns that certain public rates were no 
longer available for review online and stated that, although it was 
recently able to view a Class I railroad's rates online, it no longer 
is able to do so, even after registering through the railroad's Web 
site. (Hr'g Tr. 353:1-17, June 10, 2015.) NGFA, on the other hand, 
testified that Class I railroads make their tariffs available online 
and searchable and, although some Class I railroad tariffs may be more 
``user-friendly'' than others, the Class I's tariffs are publicly 
available. (Hr'g Tr. 181:2-9, June 10, 2015.)
    The Class I railroads that addressed this issue generally state 
that their common carrier agricultural rates are available online to 
varying degrees. At the June 2015 hearing, CSXT testified that its 
``tariff [rates] are readily available on the internet'' and that, in 
the company's experience, the tariff [rates] are used by companies of 
varying sizes for many different reasons. (Hr'g Tr. 280:7-19, June 10, 
2015.) BNSF stated that its ``tariff rates are available to all of our 
shippers that ship on us.'' (Hr'g Tr. 251:3-12, June 10, 2015.)
    Based on the comments and testimony received, the Board proposes 
amendments to 49 CFR 1300.5 to update the publication requirements for 
the transportation of agricultural products and fertilizer in a new 
proceeding, Docket No. EP 528 (Sub-No. 1). These publication 
requirements, adopted in 1996, should be revised to reflect the fact 
that Class I railroads often use company Web sites and/or applications 
to disseminate information to customers and the general public. The 
1996 decision adopting the current rules discussed publication methods 
that likely were more prevalent at the time (i.e., subscription 
services and maintenance of paper documents at physical railroad 
offices). Given the changes in the commonly used methods to disseminate 
information and the fact that some railroads already have agricultural 
rate and service information on their Web sites, the Board believes it 
is appropriate to update our regulations to reflect these modern 
practices. All rail carriers would continue to be required to make the 
required information available to the public at their offices as well.
    The Board's proposed amendments to 49 CFR 1300.5 are set forth 
below. Under our proposed change to Sec.  1300.5(c), Class I rail 
carriers would be required to make publicly available online the 
information that is currently required under Sec.  1300.5(a), which 
includes currently effective rates, schedules of rates, charges, and 
other service terms, and any scheduled changes to such rates, charges, 
and service terms for agricultural products and fertilizer.\4\
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    \4\ We do not propose to require Class II and III carriers to 
comply with the online publication requirement, as this may be a 
significant burden to Class II and III carriers that do not have Web 
sites.
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    The proposal would also continue to require that this information 
be made available to ``any person'' that seeks such information, as 
currently required by Sec.  1300.5(c), 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.\5\ In addition, the Board

[[Page 807]]

proposes amendments to 49 CFR 1300.5 that would direct parties that are 
having difficulty accessing the tariff rates for agricultural 
commodities and fertilizer to contact the Board's Office of Public 
Assistance, Government Affairs, and Compliance.
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    \5\ The Board does not propose restricting railroads from using 
a registration feature to view tariff information online. However, 
under the proposed rules, the Board would expect that such 
registration be structured in a manner that allows any person to 
view the tariffs for agricultural commodities and fertilizer.
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    The Board invites public comment on these proposed changes and 
whether additional changes are needed to promote greater rate 
transparency consistent with Sec.  11101(d).

Clarification of Aggregation of Claims and Standing Issues

    In response to its December 2013 request for comments in Docket No. 
EP 665 (Sub-No. 1), the Board received comments related to whether 
grain producers as indirect purchasers of rail transportation have the 
legal right to file rate complaints under 49 U.S.C. 11701(b). The Board 
also received comments on the ability of groups of producers or 
elevators to bring claims, or the ability of State Attorneys General to 
act on behalf of agricultural producers in a state. In its May 8, 2015 
hearing notice, the Board invited parties to discuss whether the Board 
should allow multiple agricultural producers and other agricultural 
shippers to aggregate their distinct rate claims against the same 
carrier into a single proceeding.
    Shippers and government entities agree that Board clarification on 
the legal standing of grain producers (or other indirect purchasers of 
rail transportation) to file rate complaints and aggregate their claims 
would be beneficial. ARC requested that the Board confirm that grain 
producers have the legal right to file rate complaints, and that such 
complaints are not subject to dismissal due to the absence of direct 
damage to the complainant. (ARC Opening, V.S. Whiteside 28.) According 
to ARC, such confirmation would reassure many grain producers who may 
be unsure of whether they would have standing to file a rate case. 
(Id.) Similarly, NGFA argued that aggregation of claims would allow 
parties that do not ``directly pay the rate but feel the brunt of the 
rate to bring claims.'' (Hr'g Tr. 171:6-14, June 10, 2015.) NGFA stated 
that without further clarification from the Board, standing would be a 
deterrent to agricultural producers filing a rate case.\6\ (Hr'g Tr. 
171-72, June 10, 2015.)
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    \6\ NGFA and other parties also raise issues related to 
``whether parties who indirectly suffer from rate increases can 
receive reparations.'' (Hr'g Tr. 172:8-21, June 10, 2015.) UP, for 
its part, requested that, if the Board clarifies that indirect 
purchasers of rail transportation can file rate complaints, the 
Board also clarify that parties that did not pay the rate may not 
recover reparations. (UP Reply 38.) The Board is not addressing the 
issue of reparations in this decision.
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    Additionally, USDA suggests that the Board amend its rate challenge 
procedures to allow ``groups of agricultural producers, groups of 
elevators, or State Attorneys General to act on behalf of agricultural 
producers in that State.'' (USDA Opening 10.) To the same end, the 
Montana Department of Agriculture testified that parties must be 
allowed to aggregate their claims in order to capitalize on economies 
of scale. (Hr'g Tr. 71:7-9, June 10, 2015.) The Montana Department of 
Agriculture testified that allowing real parties of interest that are 
similarly situated to bring an aggregated claim would not only increase 
efficiency for the Board and protect rail carriers from piecemeal 
litigation, but also allow State Attorneys General to bring claims on 
behalf of shippers and producers without ``fear [of] retaliation'' or 
``regard to shareholder profits'' and with the resources and the 
transportation expertise needed to effectively pursue a just remedy.\7\ 
(Hr'g Tr. 71:11-22, June 10, 2015.)
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    \7\ The Montana Department of Agriculture also testified that a 
rule mandating arbitration for certain cases could require 
aggregated claims with a value of less than $500,000 brought by 
fewer than 15 farmers to be subject to mandatory arbitration, though 
we do not address arbitration in this decision. (Hr'g Tr. 73:15-19, 
June 10, 2015.)
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    Rail carriers generally do not oppose shippers' request for 
clarification on aggregation of claims and standing, although some 
railroads state that Board precedent is clear on these issues and does 
not require further explanation. For instance, NSR comments that 49 
U.S.C. 11701(b) is clear that third parties may bring rate cases even 
if they did not pay directly for the transportation in question, but 
states that it nonetheless does not oppose the Board ``reaffirming the 
principle that on a case-by-case basis a party can bring a rate 
challenge . . . [if] it can demonstrate a sufficient nexus to the rate 
at issue . . . .'' \8\ (NSR Reply 7.) Similarly, UP states that the 
Board ``could clarify that a party need not sustain damages to file a 
rate complaint, so long as the party would otherwise have standing.'' 
(UP Reply 38; see also AAR Reply 24-25.)
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    \8\ NSR also asserted that the Board should not extend standing 
to ``parties with insignificant connections to the transportation'' 
or ``permit other attempts to combine unrelated transportation into 
a single rate challenge.'' (NSR Reply 7, Aug. 25, 2014.)
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    BNSF, however, opposes shippers' requests for clarification on 
standing. BNSF argues that only parties directly responsible for 
freight charges may seek damages in rate cases and that, for parties 
seeking non-damage forms of relief, whether they have standing is a 
``highly fact-specific'' determination for which there is no basis in 
the record. (BNSF Reply 2-3.)
    The Board will address standing and aggregation of claims, as the 
questions raised by some of the comments suggest that clarification 
would be beneficial. Under 49 U.S.C. 11701(b), a person, including a 
governmental authority, may file a complaint with the Board about a 
violation of part A, subtitle IV of title 49 by a rail carrier 
providing transportation or service subject to the Board's 
jurisdiction. Under Sec.  11701(b), the Board may not dismiss such a 
complaint because of the ``absence of direct damage to the 
complainant.'' Thus, the statute permits parties to bring a rate 
complaint, even if they have not been directly harmed or did not 
directly pay for the transportation for which relief is sought. 
Accordingly, grain producers (and other indirectly harmed complainants) 
that file rate complaints cannot be disqualified due to the absence of 
direct damage.
    At the same time, complainants that allege indirect harm in rate 
complaints must still have standing in order to proceed with a 
complaint, which is determined by the Board on a case-by-case basis. In 
making such determinations, the Board is ``not bound by the strict 
requirements of standing that otherwise govern judicial proceedings,'' 
but it may still look to the courts' test to determine whether a party 
has standing to bring an action. See Riffin--Acquis. & Operation 
Exemption--in York Cty., Pa., FD 34501, et al., slip op. at 5 (STB 
served Feb. 23, 2005) (citing N.C. R.R.--Pet. to Set Trackage Comp. & 
Other Terms & Conditions--Norfolk S. Ry., FD 33134, slip op. at 2 n.9 
(STB served May 29, 1997); Mo. Pac. R.R.--Aban.--in Douglas Champaign & 
Vermillion Ctys., Ill., AB 3 (Sub-No. 103), slip op. at 3 n.4 (ICC 
served Nov. 3, 1994)). When a complainant files a rate complaint, the 
Board may consider, for instance, whether the complainant has suffered 
an injury in fact, whether the injury is fairly traceable to the 
defendant's challenged conduct, and whether the injury is one likely to 
be redressed through a favorable decision. See Riffin, FD 34501, et 
al., slip op. at 5 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 
560-61 (1991)). Indirect damage, therefore, is not a bar to grain 
producers or other indirect purchasers of rail transportation bringing 
a complaint, but such complainants must still establish

[[Page 808]]

that they have standing to proceed with a complaint.
    Given that agricultural producers have previously been found to 
have standing to challenge the rail transportation rate for their 
grain, the Board expects that other producers would be able to 
establish standing as well. See McCarty Farms, Inc. v. Burlington N., 
Inc., 91 F.R.D. 486 (D. Mont. 1981). Grain producers should be able to 
establish standing because, as various commenters acknowledge, the 
price the producers are paid by elevators for their grain is generally 
affected at least to some extent by the transportation rate the 
railroad charged to the grain elevators.\9\
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    \9\ See NGFA Opening 7-8 (``[T]he rail transportation rates and 
terms are established between the elevator/aggregator and the 
railroad, with the cost of rail transportation typically being borne 
ultimately by the producer/farmer in the price paid by the elevator 
for the crop. . . . As rail rates are increased, the price that a 
captive elevator will pay for the farmer's crop usually decreases by 
a commensurate amount.''); ARC Opening 9 (``[I]f rail rates on 
merchandise shipments rise, the cost may be borne by millions of 
customers paying a few cents more at Walmart and similar stores. For 
grain, the rail rate buck tends to stop with farmers.''); NSR Reply 
6-7 (``NS understands that for some agricultural commodities, grain 
elevators or other parties actually contract for the transportation, 
even though farmers may be price takers and thus receive higher or 
lower prices for their crop based on the cost of transportation.''); 
USDA Opening 4 (``It is well established that transportation costs 
can have a direct impact on agricultural producers' profits . . . . 
Agricultural producers in remote areas have few transportation 
alternatives, and the price they receive for their products is net 
of transportation . . . .''); BNSF Reply, V.S. Wilson 8 
(acknowledging that rail rates are one factor influencing prices 
that grain producers receive for their grain).
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    For parties who have standing, the Board sees no reason not to 
permit the aggregation of claims where appropriate. Indeed, the Board 
has previously conducted proceedings involving class action claims, see 
McCarty Farms, and acknowledged its ability to do so, see NSL, Inc. v. 
Whitlock, NOM 41997 et al., slip op. at 5 (STB served Apr. 5, 2000). 
Therefore, in response to comments received in this proceeding, the 
Board confirms that parties may seek to aggregate their rate claims. In 
determining whether to permit the aggregation of claims, the Board will 
consider, on a case-by-case basis, 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.

Terminating Docket No. EP 665 (Sub-No. 1)

    As explained earlier, the Board sought input from interested 
parties regarding effective rate relief ideas for grain shippers in 
Docket No. EP 665 (Sub-No. 1). With respect to comments that addressed 
the Board's existing or proposed rate methodologies, the Board recently 
issued an Advance Notice of Proposed Rulemaking to explore a new rate 
reasonableness methodology. Expanding Access to Rate Relief, EP 665 
(Sub-No. 2) (STB served Aug. 31, 2016). In addition, the present 
decision addresses agricultural rate publication, standing, and 
aggregation of claims, which were also raised in Docket No. EP 665 
(Sub-No. 1). While these two decisions do not purport to address every 
suggestion offered in Docket No. EP 665 (Sub-No. 1), the Board 
considered all of the comments that were received in determining how to 
proceed at this time. Therefore, the Board will terminate Docket No. EP 
665 (Sub-No. 1) in the interest of administrative finality.

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 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. Sec. Sec.  601-604. In 
its Notice of Proposed Rulemaking, the agency must either include an 
initial regulatory flexibility analysis, Sec.  603(a), or certify that 
the proposed rule would not have a ``significant impact on a 
substantial number of small entities.'' Sec.  605(b). The impact must 
be a direct impact on small entities ``whose conduct is circumscribed 
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 
F.3d 467, 480 (7th Cir. 2009).
    The Board's proposed regulations in Docket No. EP 528 (Sub-No. 1) 
would clarify and update existing procedures related to the publication 
of rates for agricultural products and fertilizers and, therefore, do 
not mandate or circumscribe additional conduct for small entities. To 
the extent that the Board's proposal imposes a new requirement in the 
form of requiring rate information to be published online, that 
requirement is limited to Class I rail carriers.\10\ Therefore, the 
Board certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities 
as defined by 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.
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    \10\ Effective June 30, 2016, for the purpose of RFA analysis, 
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 $36,633,120 or less when adjusted for inflation 
using 2015 data. Class II rail carriers have annual operating 
revenues of less than $250 million but in excess of $20 million in 
1991 dollars, or $457,913,998 and $36,633,120 respectively, when 
adjusted for inflation using 2015 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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List of Subjects in 49 CFR Part 1300

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

    It is ordered:
    1. The Board proposes to amend its rules as set forth in this 
decision. Notice of the proposed rules will be published in the Federal 
Register.
    2. Comments regarding the proposed rules are due by February 21, 
2017. Replies are due by March 20, 2017.
    3. 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.
    4. The Board issues the policy statement set forth above.
    5. The proceeding in Docket No. EP 665 (Sub-No. 1) is terminated.
    6. This decision is effective on the day of service.


    By the Board, Chairman Elliott, Vice Chairman Miller and 
Commissioner Begeman. Vice Chairman Miller commented with a separate 
expression.
Raina S. Contee,
Clearance Clerk.

Vice Chairman Miller, Commenting

    In Petition of Norfolk Southern Railway and CSX Transportation, 
Inc. to Institute a Rulemaking Proceeding to Exempt Railroads from 
Filing Agricultural Transportation Contract Summaries, EP 725 (STB 
served Aug. 11, 2014), I committed to work with agency staff to 
explore whether the format of the summaries could be made more 
useful and ensure whether the carriers were properly complying with 
the filing requirements. I have since discussed with staff the idea 
of compiling the summary requirements into one source that would 
allow stakeholders to view the contract summary information 
collectively. However, because the carriers each report information 
differently, and because some of the

[[Page 809]]

individual fields in one summary can contain pages of information, 
creating a single source has proven difficult. As for compliance, 
the staff of the Board's Office of Governmental Affairs, Public 
Assistance, and Compliance (OPAGAC) has been monitoring the 
summaries to ensure that they are being properly filed. I will 
continue to hold briefings with the OPAGAC staff to be made aware of 
any issues with the summaries that arise.
    Additionally, in the course of developing this NPRM, I 
considered a number of ideas on how to modify the contract summary 
requirements so that they would provide more value, as well as 
address issues that are not currently covered by the existing 
regulations. However, the record here does not contain sufficient 
information that would help us to even begin making changes. Without 
such information, I am hesitant to tinker with the existing 
regulations. Accordingly, I ultimately decided that it would not be 
advisable to urge the Board to propose changes to the current 
requirements at this time.

Participants in Docket No. EP 665 (Sub-No. 1)

    The Board received comments and testimony from the following 
parties in Docket No. EP 665 (Sub-No. 1).
    Opening comments were received from:

 Alliance for Rail Competition (ARC) (joined by Montana Wheat 
and Barley Committee, National Farmers Union, Colorado Wheat 
Administrative Committee, Idaho Barley Commission, Idaho Grain 
Producers Association, Idaho Wheat Commission, Montana Farmers Union, 
North Dakota Corn Growers Association, North Dakota Farmers Union, 
South Dakota Corn Growers Association, South Dakota Farmers Union, 
Minnesota Corn Growers Association, 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, 
USA Dry Pea and Lentil Council, and National Corn Growers Association)
 Association of American Railroads (AAR)
 BNSF Railway Company (BNSF)
 CSX Transportation, Inc. (CSXT)
 National Grain and Feed Association (NGFA)
 Norfolk Southern Railway Company (NSR)
 Union Pacific Railroad Company (UP)
 U.S. Department of Agriculture (USDA)
    Reply comments were received from:

 AAR
 Agribusiness Association of Iowa, Agribusiness Council of 
Indiana, Agricultural Retailers Association, American Bakers 
Association, American Farm Bureau Federation, American Feed Industry 
Association, American Soybean Association, California Grain and Feed 
Association, Corn Refiners Association, Institute of Shortening and 
Edible Oils, Kansas Cooperative Council, Kansas Grain and Feed 
Association, Grain and Feed Association of Illinois, Michigan 
Agribusiness Association, Michigan Bean Shippers Association, Minnesota 
Grain And Feed Association, Missouri Agribusiness Association, Montana 
Grain Elevators Association, National Council of Farmer Cooperatives, 
National Farmers Union, National Oilseed Processors Association, 
Nebraska Grain and Feed Association, North American Millers' 
Association, North Dakota Grain Dealers Association, Northeast 
Agribusiness and Feed Alliance, Ohio Agribusiness Association, Oklahoma 
Grain and Feed Association, Pacific Northwest Grain and Feed 
Association, Pet Food Institute, South Dakota Grain and Feed 
Association, Texas Grain and Feed Association, USA Rice Federation, and 
Wisconsin Agribusiness Association (collectively, AAI)
 ARC (joined by the same parties that joined its opening 
comment as well as the Nebraska Corn Growers Association)
 BNSF
 CSXT
 Kansas City Southern Railway Company
 NGFA
 NSR
 Jay L. Schollmeyer for and on behalf of SMART-TD General 
Committee of Adjustment (SMART-TD)
 Texas Trading and Transportation Services, LLC, dba TTMS 
Group, together with Montana Grain Growers Association (TTMS Group)
 UP
 USDA

    Testimony at the June 10, 2015 hearing was received from:

 AAR
 ARC
 BNSF
 Canadian National Railway Company
 Canadian Pacific Railway Company
 CSXT
 Michigan Agri-Business Association \11\
---------------------------------------------------------------------------

    \11\ Written testimony only.
---------------------------------------------------------------------------

 Montana Department of Agriculture
 NGFA
 NSR
 SMART-TD
 Transportation Research Board of the National Academy of 
Sciences
 TTMS Group
 UP
 USDA

    Supplemental comments were received from:

 AAR
 ARC (joined by the same parties that joined its opening 
comment)
 NSR

List of Subjects in 49 CFR Part 1300

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

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend title 49, chapter X, of the Code 
of Federal Regulations by revising part 1300 to read as follows:

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

0
1. Revise the authority citation for part 1300 to read as follows:

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


Sec.  1300.5  [Amended]

0
2. Amend Sec.  1300.5 by adding two sentences at the end of paragraph 
(c) 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 available to any person online. Persons having 
difficulty accessing this information should either send a written 
inquiry addressed to the Director, Office of Public Assistance, 
Government Affairs, and Compliance or should telephone the Board's 
Office of Public Assistance, Government Affairs, and Compliance.
* * * * *

[FR Doc. 2016-31906 Filed 1-3-17; 8:45 am]
BILLING CODE 4915-01-P
Federal Register / Vol. 82, No. 2 / Wednesday, January 4, 2017 / Proposed Rules 805

• Does not have Federalism SURFACE TRANSPORTATION BOARD recently been adopted 1 and that those
implications as specified in Executive procedures would provide grain
Order 13132 (64 FR 43255, August 10, 49 CFR Part 1300 shippers with a new avenue for rate
1999); relief. Rail Transp. of Grain, EP 665, slip
op. at 5 (STB served Jan. 14, 2008). The
• Is not economically significant [Docket No. EP 528 (Sub-No. 1); Docket No.
EP 665 (Sub-No. 1)] Board noted, however, that it would
regulatory action based on health or
continue to monitor the relationship
safety risks subject to Executive Order Publication Requirements for between carriers and grain interests, and
13045 (62 FR 19885, April 23, 1997); Agricultural Products; Rail that, if future regulatory action were
• Is not a significant regulatory action Transportation of Grain, Rate warranted, it would open a new
subject to Executive Order 13211 (66 FR Regulation Review proceeding. Id. at 5.
28355, May 22, 2001); In Rate Regulation Reforms, EP 715
AGENCY: Surface Transportation Board. (STB served July 25, 2012), the Board
• Is not subject to requirements of
ACTION: Notice of proposed rulemaking; proposed several changes to its rate
Section 12(d) of the National
policy statement. reasonableness rules. However, based
Technology Transfer and Advancement on the comments received in that docket
Act of 1995 (15 U.S.C. 272 note) because SUMMARY: Through this Notice of from grain shipper interests, which in
application of those requirements would Proposed Rulemaking, the Surface part stated that the proposed changes
be inconsistent with the Clean Air Act; Transportation Board (Board or STB) did not provide meaningful relief to
and proposes amendments to its regulations grain shippers, the Board commenced a
• Does not provide EPA with the governing the publication, availability, separate proceeding in Rail
discretionary authority to address, as and retention for public inspection of Transportation of Grain, Rate
appropriate, disproportionate human rail carrier rate and service terms for Regulation Review, Docket No. EP 665
health or environmental effects, using agricultural products and fertilizer. The (Sub-No. 1) in December 2013 to deal
practicable and legally permissible Board also clarifies its policies on specifically with the concerns of grain
methods, under Executive Order 12898 standing and aggregation of claims as shippers. The Board invited public
(59 FR 7629, February 16, 1994). they relate to rate complaint procedures. comment on how to ensure that the
DATES: Comments are due February 21,
Board’s existing rate complaint
In addition, the SIP is not approved procedures are accessible to grain
to apply on any Indian reservation land 2017; replies are due by March 20, 2017.
shippers and provide effective
or in any other area where EPA or an ADDRESSES: Comments may be protection against unreasonable freight
Indian tribe has demonstrated that a submitted either via the Board’s e-filing rail transportation rates. The Board also
tribe has jurisdiction. In those areas of format or in the traditional paper sought input from interested parties on
Indian country, this rule does not have format. Any person using e-filing should grain shippers’ ability to effectively seek
tribal implications as specified by attach a document and otherwise relief for unreasonable rates, including
Executive Order 13175 (65 FR 67249, comply with the instructions at the E– proposals for modifying existing
November 9, 2000), because FILING link on the Board’s Web site, at procedures, or new alternative rate relief
redesignation is an action that affects http://www.stb.gov. Any person methodologies, should they be
the status of a geographical area and submitting a filing in the traditional necessary. The Board received
paper format should send an original comments and replies from numerous
does not impose any new regulatory
and 10 copies to: Surface Transportation parties.
requirements on tribes, impact any
Board, Attn: Docket No. EP 528 (Sub- On May 8, 2015, the Board announced
existing sources of air pollution on No. 1), 395 E Street SW., Washington, that it would hold a public hearing, and
tribal lands, nor impair the maintenance DC 20423–0001. Copies of written invited parties to discuss rate
of ozone national ambient air quality comments will be available for viewing reasonableness accessibility for grain
standards in tribal lands. and self-copying at the Board’s Public shippers, as well as other issues,
List of Subjects Docket Room, Room 131, and will be including: Whether the Board should
posted to the Board’s Web site. allow multiple agricultural farmers and
40 CFR Part 52 other agricultural shippers to aggregate
FOR FURTHER INFORMATION CONTACT:
Sarah Fancher at (202) 245–0355. their distinct rate claims against the
Environmental protection, Air same carrier into a single proceeding,
pollution control, Incorporation by Assistance for the hearing impaired is
available through the Federal and whether the disclosure requirement
reference, Intergovernmental relations, for agricultural tariff rates should be
Particulate matter. Information Relay Service (FIRS) at 1–
800–877–8339. modified to allow for increased
40 CFR Part 81 transparency. The public hearing was
SUPPLEMENTARY INFORMATION: In held on June 10, 2015, and the Board
Environmental protection, Air November 2006, the Board held a received post-hearing supplemental
pollution control, National parks, hearing in Rail Transportation of Grain, comments from interested parties
Wilderness areas. Docket No. EP 665, as a forum for through June 24, 2015.
interested persons to provide views and Although much of the commentary
Dated: December 13, 2016. information about grain transportation and testimony received pertained to
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Robert Kaplan, markets. The hearing was prompted by existing or proposed rate relief
Acting Regional Administrator, Region 5. concerns regarding rates and service methodologies for agricultural
[FR Doc. 2016–31635 Filed 1–3–17; 8:45 am] issues related to the movement of grain commodity shippers, the comments and
BILLING CODE 6560–50–P
raised by Members of Congress, grain
producers, and other stakeholders. In 1 Simplified Standards for Rail Rate Cases, EP

January 2008, the Board closed that 646 (Sub-No. 1) (STB served Sept. 5, 2007), aff’d
sub nom. CSX Transp., Inc. v. STB, 568 F.3d 236
proceeding, reasoning that guidelines (D.C. Cir.), vacated in part on reh’g, 584 F.3d 1076
for simplified rate procedures had (D.C. Cir. 2009).

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testimony also touched on various other a way that allows for the determination the company’s experience, the tariff
issues related to the rail transportation of the exact rate, charges, and service [rates] are used by companies of varying
of grain. In order to address the terms applicable to any given shipment sizes for many different reasons. (Hr’g
comments pertaining to rate relief (or to any given group of shipments).’’ Tr. 280:7–19, June 10, 2015.) BNSF
methodologies, the Board issued an 49 CFR 1300.5(b). Rail carriers also must stated that its ‘‘tariff rates are available
Advance Notice of Proposed make the information available, without to all of our shippers that ship on us.’’
Rulemaking, which proposed to develop charge during normal business hours, at (Hr’g Tr. 251:3–12, June 10, 2015.)
a new rate reasonableness methodology offices where they normally keep rate Based on the comments and
for use in very small disputes, in a information, 49 CFR 1300.5(c), and to testimony received, the Board proposes
decision served on August 31, 2016, in all persons who have subscribed to a amendments to 49 CFR 1300.5 to update
Docket Nos. EP 665 (Sub-No. 1) and EP publication service operated either by the publication requirements for the
665 (Sub-No. 2). Additionally, based on the rail carrier itself or by an agent transportation of agricultural products
the comments and testimony received acting at the rail carrier’s direction, 49 and fertilizer in a new proceeding,
regarding other issues related to the rail CFR 1300.5(d).3 Docket No. EP 528 (Sub-No. 1). These
transportation of grain,2 the Board today In announcing the June 2015 hearing publication requirements, adopted in
proposes amendments to its regulations in Docket No. EP 665 (Sub-No. 1), the 1996, should be revised to reflect the
on publication of rates for agricultural Board invited parties to discuss whether fact that Class I railroads often use
products and fertilizer in a new there are any ways in which the Board company Web sites and/or applications
proceeding, Docket No. EP 528 (Sub-No. could create greater transparency for to disseminate information to customers
1), and sets forth policy statements grain shippers regarding how railroads and the general public. The 1996
regarding aggregation of claims and set rates. Specifically, the Board invited decision adopting the current rules
standing. The Board’s proposals and parties to address the disclosure discussed publication methods that
clarifications with respect to these requirements for agricultural rates under likely were more prevalent at the time
issues are discussed below. Finally, the 49 CFR 1300.5 and whether this (i.e., subscription services and
Board is terminating the proceeding in requirement should be modified to maintenance of paper documents at
Docket No. EP 665 (Sub-No. 1). allow for increased transparency. physical railroad offices). Given the
Shippers generally had differing changes in the commonly used methods
Notice of Proposed Rules Regarding opinions as to the availability of
Agricultural Rate Publication to disseminate information and the fact
agricultural tariff rates and their that some railroads already have
In the ICC Termination Act of 1995, transparency. On the one hand, ARC agricultural rate and service information
Public Law 104–88, 109 Stat. 803, asserts that there is a ‘‘[n]eed for on their Web sites, the Board believes it
Congress eliminated the tariff increased access to railroad public is appropriate to update our regulations
requirements that were formerly documents such as tariffs which serve to to reflect these modern practices. All
applicable to rail carriers and imposed provide education (to agricultural rail carriers would continue to be
instead certain obligations to disclose producers, small and large elevators, required to make the required
common carriage rates and service and merchandisers)’’ and for ‘‘access to information available to the public at
terms. One of these requirements, more complete summaries of their offices as well.
applicable only to the transportation of transportation contracts, and The Board’s proposed amendments to
agricultural products, is that rail carriers operational data.’’ (ARC Opening, V.S. 49 CFR 1300.5 are set forth below.
must publish, make available, and retain Whiteside 8.) In its testimony, ARC Under our proposed change to
for public inspection, their common raised concerns that certain public rates § 1300.5(c), Class I rail carriers would be
carrier rates, schedules of rates, and were no longer available for review required to make publicly available
other service terms, and any proposed online and stated that, although it was online the information that is currently
and actual changes to such rates and recently able to view a Class I railroad’s required under § 1300.5(a), which
service terms. 49 U.S.C. 11101(d). The rates online, it no longer is able to do includes currently effective rates,
statute states that the term ‘‘agricultural so, even after registering through the schedules of rates, charges, and other
products’’ includes grain, as defined in railroad’s Web site. (Hr’g Tr. 353:1–17, service terms, and any scheduled
7 U.S.C. 75 and all products thereof, and June 10, 2015.) NGFA, on the other changes to such rates, charges, and
fertilizer. Id. hand, testified that Class I railroads
The Board adopted regulations to service terms for agricultural products
make their tariffs available online and and fertilizer.4
implement the requirements of searchable and, although some Class I The proposal would also continue to
§ 11101(d), in Disclosure, Publication, & railroad tariffs may be more ‘‘user-
Notice of Change of Rates & Other require that this information be made
friendly’’ than others, the Class I’s tariffs available to ‘‘any person’’ that seeks
Service Terms for Rail Common are publicly available. (Hr’g Tr. 181:2–
Carriage, 1 S.T.B. 153 (1996). Those such information, as currently required
9, June 10, 2015.) by § 1300.5(c), so that the rate
regulations are codified at 49 CFR The Class I railroads that addressed
1300.5. Under those regulations, the information published online would be
this issue generally state that their readily available to anyone, regardless
information required to be published common carrier agricultural rates are
‘‘must include an accurate description of whether a person is a current or
available online to varying degrees. At potential customer or receiver of a
of the services offered to the public; the June 2015 hearing, CSXT testified
must provide the specific applicable railroad.5 In addition, the Board
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that its ‘‘tariff [rates] are readily
rates (or the basis for calculating the available on the internet’’ and that, in 4 We do not propose to require Class II and III
specific applicable rates), charges, and carriers to comply with the online publication
service terms; and must be arranged in 3 The Board noted when adopting these requirement, as this may be a significant burden to
regulations that the publication requirements were Class II and III carriers that do not have Web sites.
2 For a list of the numerous parties that have applicable only to non-exempted agricultural 5 The Board does not propose restricting railroads

participated in the Docket No. EP 665 (Sub-No. 1) products and fertilizer. Disclosure, 1 S.T.B. at 160. from using a registration feature to view tariff
proceeding at various stages, as set forth below. To Many agricultural commodities and products have information online. However, under the proposed
the extent this decision refers to parties by been exempted as a class from the Board’s rules, the Board would expect that such registration
abbreviations, those abbreviations are listed below. regulation. See 49 CFR 1039.10. be structured in a manner that allows any person

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proposes amendments to 49 CFR 1300.5 Additionally, USDA suggests that the responsible for freight charges may seek
that would direct parties that are having Board amend its rate challenge damages in rate cases and that, for
difficulty accessing the tariff rates for procedures to allow ‘‘groups of parties seeking non-damage forms of
agricultural commodities and fertilizer agricultural producers, groups of relief, whether they have standing is a
to contact the Board’s Office of Public elevators, or State Attorneys General to ‘‘highly fact-specific’’ determination for
Assistance, Government Affairs, and act on behalf of agricultural producers which there is no basis in the record.
Compliance. in that State.’’ (USDA Opening 10.) To (BNSF Reply 2–3.)
The Board invites public comment on the same end, the Montana Department The Board will address standing and
these proposed changes and whether of Agriculture testified that parties must aggregation of claims, as the questions
additional changes are needed to be allowed to aggregate their claims in raised by some of the comments suggest
promote greater rate transparency order to capitalize on economies of that clarification would be beneficial.
consistent with § 11101(d). scale. (Hr’g Tr. 71:7–9, June 10, 2015.) Under 49 U.S.C. 11701(b), a person,
Clarification of Aggregation of Claims The Montana Department of Agriculture including a governmental authority,
and Standing Issues testified that allowing real parties of may file a complaint with the Board
interest that are similarly situated to about a violation of part A, subtitle IV
In response to its December 2013 bring an aggregated claim would not of title 49 by a rail carrier providing
request for comments in Docket No. EP only increase efficiency for the Board transportation or service subject to the
665 (Sub-No. 1), the Board received and protect rail carriers from piecemeal Board’s jurisdiction. Under § 11701(b),
comments related to whether grain litigation, but also allow State Attorneys the Board may not dismiss such a
producers as indirect purchasers of rail General to bring claims on behalf of complaint because of the ‘‘absence of
transportation have the legal right to file shippers and producers without ‘‘fear direct damage to the complainant.’’
rate complaints under 49 U.S.C. [of] retaliation’’ or ‘‘regard to
11701(b). The Board also received Thus, the statute permits parties to bring
shareholder profits’’ and with the a rate complaint, even if they have not
comments on the ability of groups of resources and the transportation
producers or elevators to bring claims, been directly harmed or did not directly
expertise needed to effectively pursue a pay for the transportation for which
or the ability of State Attorneys General just remedy.7 (Hr’g Tr. 71:11–22, June
to act on behalf of agricultural relief is sought. Accordingly, grain
10, 2015.) producers (and other indirectly harmed
producers in a state. In its May 8, 2015 Rail carriers generally do not oppose
hearing notice, the Board invited parties complainants) that file rate complaints
shippers’ request for clarification on cannot be disqualified due to the
to discuss whether the Board should aggregation of claims and standing,
allow multiple agricultural producers absence of direct damage.
although some railroads state that Board
and other agricultural shippers to precedent is clear on these issues and At the same time, complainants that
aggregate their distinct rate claims does not require further explanation. allege indirect harm in rate complaints
against the same carrier into a single For instance, NSR comments that 49 must still have standing in order to
proceeding. U.S.C. 11701(b) is clear that third proceed with a complaint, which is
Shippers and government entities parties may bring rate cases even if they determined by the Board on a case-by-
agree that Board clarification on the did not pay directly for the case basis. In making such
legal standing of grain producers (or transportation in question, but states determinations, the Board is ‘‘not bound
other indirect purchasers of rail that it nonetheless does not oppose the by the strict requirements of standing
transportation) to file rate complaints Board ‘‘reaffirming the principle that on that otherwise govern judicial
and aggregate their claims would be a case-by-case basis a party can bring a proceedings,’’ but it may still look to the
beneficial. ARC requested that the Board rate challenge . . . [if] it can courts’ test to determine whether a party
confirm that grain producers have the demonstrate a sufficient nexus to the has standing to bring an action. See
legal right to file rate complaints, and rate at issue . . . .’’ 8 (NSR Reply 7.) Riffin—Acquis. & Operation
that such complaints are not subject to Similarly, UP states that the Board Exemption—in York Cty., Pa., FD
dismissal due to the absence of direct ‘‘could clarify that a party need not 34501, et al., slip op. at 5 (STB served
damage to the complainant. (ARC sustain damages to file a rate complaint, Feb. 23, 2005) (citing N.C. R.R.—Pet. to
Opening, V.S. Whiteside 28.) According so long as the party would otherwise Set Trackage Comp. & Other Terms &
to ARC, such confirmation would have standing.’’ (UP Reply 38; see also Conditions—Norfolk S. Ry., FD 33134,
reassure many grain producers who may AAR Reply 24–25.) slip op. at 2 n.9 (STB served May 29,
be unsure of whether they would have BNSF, however, opposes shippers’ 1997); Mo. Pac. R.R.—Aban.—in
standing to file a rate case. (Id.) requests for clarification on standing. Douglas Champaign & Vermillion Ctys.,
Similarly, NGFA argued that aggregation BNSF argues that only parties directly Ill., AB 3 (Sub-No. 103), slip op. at 3 n.4
of claims would allow parties that do (ICC served Nov. 3, 1994)). When a
not ‘‘directly pay the rate but feel the transportation can file rate complaints, the Board complainant files a rate complaint, the
brunt of the rate to bring claims.’’ (Hr’g also clarify that parties that did not pay the rate may Board may consider, for instance,
not recover reparations. (UP Reply 38.) The Board whether the complainant has suffered
Tr. 171:6–14, June 10, 2015.) NGFA is not addressing the issue of reparations in this
stated that without further clarification decision.
an injury in fact, whether the injury is
from the Board, standing would be a 7 The Montana Department of Agriculture also fairly traceable to the defendant’s
deterrent to agricultural producers filing testified that a rule mandating arbitration for certain challenged conduct, and whether the
a rate case.6 (Hr’g Tr. 171–72, June 10, cases could require aggregated claims with a value injury is one likely to be redressed
mstockstill on DSK3G9T082PROD with PROPOSALS

of less than $500,000 brought by fewer than 15 through a favorable decision. See Riffin,
2015.) farmers to be subject to mandatory arbitration,
though we do not address arbitration in this FD 34501, et al., slip op. at 5 (citing
to view the tariffs for agricultural commodities and decision. (Hr’g Tr. 73:15–19, June 10, 2015.) Lujan v. Defs. of Wildlife, 504 U.S. 555,
fertilizer. 8 NSR also asserted that the Board should not 560–61 (1991)). Indirect damage,
6 NGFA and other parties also raise issues related extend standing to ‘‘parties with insignificant therefore, is not a bar to grain producers
to ‘‘whether parties who indirectly suffer from rate connections to the transportation’’ or ‘‘permit other
increases can receive reparations.’’ (Hr’g Tr. 172:8– attempts to combine unrelated transportation into a
or other indirect purchasers of rail
21, June 10, 2015.) UP, for its part, requested that, single rate challenge.’’ (NSR Reply 7, Aug. 25, transportation bringing a complaint, but
if the Board clarifies that indirect purchasers of rail 2014.) such complainants must still establish

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that they have standing to proceed with effective rate relief ideas for grain under 5 U.S.C. 605(b) that this rule will
a complaint. shippers in Docket No. EP 665 (Sub-No. not have a significant economic impact
Given that agricultural producers 1). With respect to comments that on a substantial number of small entities
have previously been found to have addressed the Board’s existing or as defined by the RFA. A copy of this
standing to challenge the rail proposed rate methodologies, the Board decision will be served upon the Chief
transportation rate for their grain, the recently issued an Advance Notice of Counsel for Advocacy, Office of
Board expects that other producers Proposed Rulemaking to explore a new Advocacy, U.S. Small Business
would be able to establish standing as rate reasonableness methodology. Administration, Washington, DC 20416.
well. See McCarty Farms, Inc. v. Expanding Access to Rate Relief, EP 665
Burlington N., Inc., 91 F.R.D. 486 (D. List of Subjects in 49 CFR Part 1300
(Sub-No. 2) (STB served Aug. 31, 2016).
Mont. 1981). Grain producers should be In addition, the present decision Administrative practice and
able to establish standing because, as addresses agricultural rate publication, procedure, Agricultural commodities,
various commenters acknowledge, the standing, and aggregation of claims, Railroads, Reporting and recordkeeping
price the producers are paid by which were also raised in Docket No. EP requirements.
elevators for their grain is generally 665 (Sub-No. 1). While these two It is ordered:
affected at least to some extent by the decisions do not purport to address 1. The Board proposes to amend its
transportation rate the railroad charged every suggestion offered in Docket No. rules as set forth in this decision. Notice
to the grain elevators.9 EP 665 (Sub-No. 1), the Board of the proposed rules will be published
For parties who have standing, the considered all of the comments that in the Federal Register.
Board sees no reason not to permit the were received in determining how to 2. Comments regarding the proposed
aggregation of claims where appropriate. proceed at this time. Therefore, the rules are due by February 21, 2017.
Indeed, the Board has previously Board will terminate Docket No. EP 665 Replies are due by March 20, 2017.
conducted proceedings involving class (Sub-No. 1) in the interest of 3. A copy of this decision will be
action claims, see McCarty Farms, and administrative finality. served upon the Chief Counsel for
acknowledged its ability to do so, see Advocacy, Office of Advocacy, U.S.
NSL, Inc. v. Whitlock, NOM 41997 et al., Regulatory Flexibility Act
Small Business Administration,
slip op. at 5 (STB served Apr. 5, 2000). The Regulatory Flexibility Act of 1980 Washington, DC 20416.
Therefore, in response to comments (RFA), 5 U.S.C. 601–612, generally 4. The Board issues the policy
received in this proceeding, the Board requires a description and analysis of statement set forth above.
confirms that parties may seek to new rules that would have a significant 5. The proceeding in Docket No. EP
aggregate their rate claims. In economic impact on a substantial 665 (Sub-No. 1) is terminated.
determining whether to permit the number of small entities. In drafting a 6. This decision is effective on the day
aggregation of claims, the Board will rule, an agency is required to: (1) Assess of service.
consider, on a case-by-case basis, factors the effect that its regulation will have on
such as, whether the claims or defenses By the Board, Chairman Elliott, Vice
small entities; (2) analyze effective
Chairman Miller and Commissioner
involve common questions of law or alternatives that may minimize a Begeman. Vice Chairman Miller commented
fact, whether administrative efficiencies regulation’s impact; and (3) make the with a separate expression.
could be achieved through aggregation, analysis available for public comment. Raina S. Contee,
and the number of claims being §§ 601–604. In its Notice of Proposed
Clearance Clerk.
aggregated. Rulemaking, the agency must either
include an initial regulatory flexibility Vice Chairman Miller, Commenting
Terminating Docket No. EP 665 (Sub-
No. 1) analysis, § 603(a), or certify that the In Petition of Norfolk Southern Railway
proposed rule would not have a and CSX Transportation, Inc. to Institute a
As explained earlier, the Board sought ‘‘significant impact on a substantial Rulemaking Proceeding to Exempt Railroads
input from interested parties regarding number of small entities.’’ § 605(b). The from Filing Agricultural Transportation
impact must be a direct impact on small Contract Summaries, EP 725 (STB served
9 See NGFA Opening 7–8 (‘‘[T]he rail
entities ‘‘whose conduct is Aug. 11, 2014), I committed to work with
transportation rates and terms are established agency staff to explore whether the format of
between the elevator/aggregator and the railroad, circumscribed or mandated’’ by the
proposed rule. White Eagle Coop. v. the summaries could be made more useful
with the cost of rail transportation typically being
and ensure whether the carriers were
borne ultimately by the producer/farmer in the Conner, 553 F.3d 467, 480 (7th Cir.
price paid by the elevator for the crop. . . . As rail properly complying with the filing
2009). requirements. I have since discussed with
rates are increased, the price that a captive elevator
will pay for the farmer’s crop usually decreases by The Board’s proposed regulations in staff the idea of compiling the summary
a commensurate amount.’’); ARC Opening 9 (‘‘[I]f Docket No. EP 528 (Sub-No. 1) would requirements into one source that would
rail rates on merchandise shipments rise, the cost clarify and update existing procedures allow stakeholders to view the contract
may be borne by millions of customers paying a few related to the publication of rates for summary information collectively. However,
cents more at Walmart and similar stores. For grain,
agricultural products and fertilizers and, because the carriers each report information
the rail rate buck tends to stop with farmers.’’); NSR
Reply 6–7 (‘‘NS understands that for some therefore, do not mandate or differently, and because some of the
agricultural commodities, grain elevators or other circumscribe additional conduct for
parties actually contract for the transportation, even small entities. To the extent that the Under the Regulatory Flexibility Act, EP 719 (STB
though farmers may be price takers and thus receive served June 30, 2016) (with Board Member
higher or lower prices for their crop based on the Board’s proposal imposes a new Begeman dissenting). Class III carriers have annual
mstockstill on DSK3G9T082PROD with PROPOSALS

cost of transportation.’’); USDA Opening 4 (‘‘It is requirement in the form of requiring rate operating revenues of $20 million or less in 1991
well established that transportation costs can have information to be published online, that dollars, or $36,633,120 or less when adjusted for
a direct impact on agricultural producers’ profits requirement is limited to Class I rail inflation using 2015 data. Class II rail carriers have
. . . . Agricultural producers in remote areas have annual operating revenues of less than $250 million
few transportation alternatives, and the price they carriers.10 Therefore, the Board certifies but in excess of $20 million in 1991 dollars, or
receive for their products is net of transportation $457,913,998 and $36,633,120 respectively, when
. . . .’’); BNSF Reply, V.S. Wilson 8 10 Effective June 30, 2016, for the purpose of RFA adjusted for inflation using 2015 data. The Board
(acknowledging that rail rates are one factor analysis, the Board defines a ‘‘small business’’ as a calculates the revenue deflator factor annually and
influencing prices that grain producers receive for rail carrier classified as a Class III rail carrier under publishes the railroad revenue thresholds on its
their grain). 49 CFR 1201.1–1. See Small Entity Size Standards Web site. 49 CFR 1201.1–1.

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking; policy statement.
Dates		Comments are due February 21, 2017; replies are due by March 20, 2017.
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.
FR Citation		82 FR 805
CFR Associated		Administrative Practice and Procedure; Agricultural Commodities; Railroads and Reporting and Recordkeeping Requirements