[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2777 Introduced in Senate (IS)]

113th CONGRESS
  2d Session
                                S. 2777

    To establish the Surface Transportation Board as an independent 
                 establishment, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 8, 2014

 Mr. Rockefeller (for himself and Mr. Thune) introduced the following 
 bill; which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
    To establish the Surface Transportation Board as an independent 
                 establishment, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Surface Transportation Board 
Reauthorization Act of 2014''.

SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE.

    Except as otherwise expressly provided, wherever in this Act an 
amendment or repeal is expressed in terms of an amendment to, or repeal 
of, a section or other provision, the reference shall be considered to 
be made to a section or other provision of title 49, United States 
Code.

SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION BOARD AS AN INDEPENDENT 
              ESTABLISHMENT.

    (a) In General.--Section 701(a) is amended to read as follows:
    ``(a) Establishment.--The Surface Transportation Board is an 
independent establishment of the United States Government.''.
    (b) Conforming Amendments.--
            (1) Administrative provisions.--Section 703 is amended--
                    (A) by striking subsections (a), (c), (f), and (g);
                    (B) by redesignating subsections (b), (d), and (e) 
                as subsections (a), (b), and (c), respectively; and
                    (C) by adding at the end the following:
    ``(d) Submissions and Transmittals.--Whenever the Board submits or 
transmits any budget estimate, budget request, supplemental budget 
estimate, or other budget information, legislative recommendation, 
prepared testimony for a congressional hearing, or comment on 
legislation to the President or to the Office of Management and Budget, 
it shall concurrently transmit a copy thereof to the Committee on 
Commerce, Science, and Transportation of the Senate and the Committee 
on Transportation and Infrastructure of the House of Representatives. 
No officer or agency of the United States shall have any authority to 
require the Board to submit its budget estimates or requests, 
legislative recommendations, prepared testimony for congressional 
hearings, or comments on legislation to any officer or agency of the 
United States for approval, comments, or review, prior to the 
submission of the recommendations, testimony, or comments to 
Congress.''.
            (2) Administrative support.--
                    (A) Repealer.--Section 725 is repealed.
                    (B) Conforming amendment.--The table of contents 
                for chapter 7 is amended by striking the item relating 
                to section 725.

SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP.

    (a) In General.--Section 701(b) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``3 members'' and inserting ``5 
                members''; and
                    (B) by striking ``2 members'' and inserting ``3 
                members''; and
            (2) by striking paragraph (2) and inserting the following:
            ``(2) At any given time, at least 3 members of the Board 
        shall be individuals with professional standing and 
        demonstrated knowledge in the fields of transportation, 
        transportation regulation, or economic regulation, and at least 
        2 members shall be individuals with professional or business 
        experience (including agriculture or other rail customers) in 
        the private sector.''.
    (b) Repeal of Holdover Limitation.--Section 701(b)(3) is amended by 
striking ``qualified, but for a period not to exceed one year'' and 
inserting ``qualified''.
    (c) Repeal of Obsolete Provision.--Section 701(b) is amended--
            (1) by striking paragraph (4);
            (2) by redesignating paragraphs (5), (6), and (7) as 
        paragraphs (4), (5), and (6), respectively; and
            (3) by striking ``In the case of an individual who becomes 
        a member of the Board pursuant to paragraph (4), or an 
        individual'' in paragraph (4), as redesignated, and inserting 
        ``In the case of an individual''.

SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS.

    Section 703(a), as redesignated by section 3 of this Act, is 
amended to read as follows:
    ``(a) Open Meetings.--
            ``(1) In general.--The Board shall be deemed to be an 
        agency for purposes of section 552b of title 5.
            ``(2) Nonpublic collaborative discussions.--
                    ``(A) In general.--Notwithstanding section 552b of 
                title 5, a majority of the members may hold a meeting 
                that is not open to public observation to discuss 
                official agency business if--
                            ``(i) no vote or other disposition of 
                        official agency business is taken at the 
                        meeting;
                            ``(ii) each individual present at the 
                        meeting is a member or an employee of the 
                        Board; and
                            ``(iii) the General Counsel of the Board is 
                        present at the meeting.
                    ``(B) Disclosure of nonpublic collaborative 
                discussions.--Except as provided under subparagraph 
                (C), not later than 2 business days after the 
                conclusion of a meeting under subparagraph (A), the 
                Board shall make available to the public, in a place 
                easily accessible to the public--
                            ``(i) a list of the individuals present at 
                        the meeting; and
                            ``(ii) a summary of the matters discussed 
                        at the meeting, except for any matters the 
                        Board properly determines may be withheld from 
                        the public under section 552b(c) of title 5.
                    ``(C) Ongoing proceedings.--If a discussion under 
                subparagraph (A) relates, directly or indirectly, to an 
                ongoing proceeding before the Board, the Board shall 
                make the disclosure under subparagraph (B) on the date 
                of the final Board decision.
                    ``(D) Preservation of open meetings requirements 
                for agency action.--Nothing in this paragraph shall 
                limit the applicability of section 552b of title 5 with 
                respect to a meeting of the members other than that 
                described in this paragraph.
                    ``(E) Statutory construction.--Nothing in this 
                paragraph--
                            ``(i) shall limit the applicability of 
                        section 552b of title 5 with respect to any 
                        information which is proposed to be withheld 
                        from the public under subparagraph (B)(ii); and
                            ``(ii) authorizes the Board to withhold 
                        from any individual any record that is 
                        accessible to that individual under section 
                        552a of title 5, United States Code.''.

SEC. 6. INVESTIGATIVE AUTHORITY.

    (a) Authority To Initiate Investigations.--Section 11701(a) is 
amended by striking ``only on complaint'' and inserting ``on the 
Board's own initiative or on complaint''.
    (b) Rate Proceedings.--Section 10704(b) is amended by striking the 
first sentence and inserting ``The Board may begin a proceeding under 
subsection (a)(1) on its own initiative or upon complaint, except that 
a proceeding to determine the reasonableness of the level of a rate 
charged by a carrier may only be initiated upon complaint.''.
    (c) Annual Report; Investigations.--Section 704 is amended by 
striking ``on its activities.'' and inserting ``on its activities, 
including each instance in which the Board has initiated an 
investigation on its own initiative under this chapter or subtitle 
IV.''.

SEC. 7. PROCEDURES FOR RATE CASES.

    (a) Simplified Procedure.--Section 10701(d)(3) is amended to read 
as follows:
            ``(3) The Board shall maintain a simplified and expedited 
        method for determining the reasonableness of challenged rates 
        in those cases in which a full stand-alone cost presentation is 
        too costly, given the value of the case.''.
    (b) Expedited Handling.--Section 10704(d) is amended by striking 
the first sentence and inserting ``The Board shall maintain procedures 
to ensure expeditious handling of challenges to the reasonableness of 
railroad rates.''.

SEC. 8. RATE REVIEW TIMELINES.

    Section 10704(d), as amended by section 7 of this Act, is further 
amended--
            (1) by striking ``(d) The'' and inserting ``(d)(1) The''; 
        and
            (2) by adding at the end the following:
            ``(2)(A) Except as provided under subparagraph (B), in a 
        stand-alone cost rate challenge, the Board shall comply with 
        the following timeline:
                            ``(i) For discovery, completion not later 
                        than 150 days after the date that the challenge 
                        is initiated.
                            ``(ii) For development of the evidentiary 
                        record, completion not later than 155 days 
                        after the date that discovery is complete under 
                        clause (i).
                            ``(iii) For submission of a closing brief, 
                        submission not later than 60 days after the 
                        date that development of the evidentiary record 
                        is complete under clause (ii).
                            ``(iv) For a final Board decision, issuance 
                        not later than 180 days after the date that the 
                        last closing brief is submitted under clause 
                        (iii).
                    ``(B) The Board may extend a timeline under 
                subparagraph (A) after a request from any party or in 
                the interest of due process.''.

SEC. 9. EFFECT OF RATE BUNDLING.

    Not later than 180 days after the date of enactment of this Act, 
the Surface Transportation Board shall initiate an ex parte proceeding 
on whether contract proposals for multiple origin-to-destination 
movements have adversely impacted the intent of Congress that the 
Surface Transportation Board's rate challenge procedures remain 
available to shippers that are subject to railroad market dominance, 
and how the Board can prevent such practices in the future.

SEC. 10. REPORT ON RATE CASE METHODOLOGY.

    Not later than 1 year after the date of enactment of this Act, the 
Surface Transportation Board shall report to the Committee on Commerce, 
Science, and Transportation of the Senate and the Committee on 
Transportation and Infrastructure of the House of Representatives on--
            (1) whether current methodologies are sufficient to address 
        the complexity of large rate cases; and
            (2) alternative methodologies that could streamline and 
        expedite large rate cases.

SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRACTICES, AND COMMON 
              CARRIER SERVICE EXPECTATION DISPUTES.

    (a) In General.--Chapter 117 is amended by adding at the end the 
following:
``Sec. 11709. Arbitration of certain rail rates, practices, and common 
              carrier service disputes
    ``(a) In General.--Not later than 1 year after the date of 
enactment of the Surface Transportation Board Reauthorization Act of 
2014, the Board shall promulgate regulations to establish a binding 
arbitration process to resolve rail rate, practice, and common carrier 
service expectation complaints subject to the jurisdiction of the 
Board.
    ``(b) Covered Disputes.--The binding arbitration process--
            ``(1) shall apply to disputes involving rates, practices, 
        and common carrier service expectations subject to the 
        jurisdiction of the Board; and
            ``(2) shall not apply to--
                    ``(A) disputes to obtain the grant, denial, stay, 
                or revocation of any license, authorization, or 
                exemption, or to prescribe for the future any conduct, 
                rules, or results of general, industry-wide 
                applicability, or to enforce a labor protective 
                condition; and
                    ``(B) disputes solely between 2 or more rail 
                carriers.
    ``(c) Arbitration Procedures.--
            ``(1) In general.--The Board--
                    ``(A) may make the binding arbitration process 
                available only to the relevant parties--
                            ``(i) after the filing of a formal 
                        complaint; or
                            ``(ii) upon petition by a party at the 
                        conclusion of any informal dispute resolution 
                        process provided by the Board for a complaint 
                        subject to this section;
                    ``(B) with respect to rate disputes, may make the 
                binding arbitration process available only to the 
                relevant parties if the rail carrier has market 
                dominance, as determined under section 10707 of this 
                title; and
                    ``(C) shall determine whether to pursue the binding 
                arbitration process not later than 30 days after the 
                date that a petition or formal complaint is filed.
            ``(2) Limitation.--Initiation of the binding arbitration 
        process shall preclude the Board from separately reviewing a 
        complaint or dispute related to the same rail rate, practice, 
        or common carrier service expectation in a covered dispute 
        involving the same parties.
            ``(3) Rates.--In resolving a covered dispute involving the 
        reasonableness of a rail carrier's rates, the arbitrator or 
        panel of arbitrators, as applicable, shall consider the Board's 
        methodologies for setting maximum lawful rates, giving due 
        consideration to the need for differential pricing to permit a 
        rail carrier to collect adequate revenues within the meaning of 
        section 10704(a)(2).
            ``(4) Service expectations.--In resolving a dispute 
        involving common carrier service expectations, the arbitrator 
        or panel of arbitrators, as applicable, shall consider the 
        rates and service terms, and any changes thereto, as published 
        or otherwise made available under subsection (b), (c), or (d) 
        of section 11101.
    ``(d) Arbitration Decisions.--Any decision reached in an 
arbitration process under this section--
            ``(1) shall--
                    ``(A) be consistent with subtitle IV;
                    ``(B) be in writing;
                    ``(C) contain findings of fact and conclusions; and
                    ``(D) be binding upon the parties; and
            ``(2) shall not have any precedential effect in any other 
        or subsequent arbitration dispute.
    ``(e) Timelines.--
            ``(1) Selection.--An arbitrator or panel of arbitrators 
        shall be selected not later than 14 days after the date of the 
        Board's decision to initiate arbitration.
            ``(2) Evidentiary process.--The evidentiary process of the 
        binding arbitration process shall be completed not later than 
        90 days after the date that the arbitration process is 
        initiated, unless a party requests an extension and the 
        arbitrator or panel of arbitrators, as applicable, grants it.
            ``(3) Decision.--The arbitrator or panel of arbitrators, as 
        applicable, shall issue a decision not later than 30 days after 
        the date that the evidentiary record is closed.
            ``(4) Extensions.--The Board may extend any of the 
        timelines in this subsection upon the agreement of all parties 
        in the dispute.
    ``(f) Arbitrators.--
            ``(1) In general.--Arbitration under this section shall be 
        conducted by an arbitrator, or a panel of arbitrators, selected 
        from a roster, maintained by the Board, of persons with rail 
        transportation, economic regulation, professional or business 
        experience, including agriculture, in the private sector.
            ``(2) Selection.--
                    ``(A) In general.--If the parties cannot mutually 
                agree on an arbitrator, or the lead arbitrator of a 
                panel of arbitrators, the parties shall select the 
                arbitrator or lead arbitrator from the roster by 
                alternately striking names from the roster until only 1 
                name remains.
                    ``(B) Panel of arbitrators.--For purposes of this 
                section, a panel of arbitrators shall be selected as 
                follows:
                            ``(i) Notwithstanding subparagraph (A), 
                        each party to a dispute shall select 1 
                        arbitrator from the roster.
                            ``(ii) The parties to a dispute may 
                        mutually select 1 arbitrator from the roster to 
                        serve as the lead arbitrator of the panel of 
                        arbitrators.
            ``(3) Cost.--The parties shall share the costs of the 
        arbitration equally.
    ``(g) Relief.--An arbitral decision under this section may award 
the payment of damages or rate prescriptive relief, but the value of 
the award shall be limited as follows:
            ``(1) For common carrier service and practice disputes, the 
        damage award may not exceed $2,000,000.
            ``(2) For rate disputes, the damage award, including any 
        rate prescription, may not exceed $25,000,000, and any rate 
        prescription shall be limited to not longer than 5 years from 
        the date of the arbitral decision.
    ``(h) Board Review.--If a party appeals a decision under this 
section to the Board, the Board may review the decision under this 
section to determine if--
            ``(1) the decision is consistent with subtitle IV as 
        applied by the Board; or
            ``(2) the award limitation under subsection (g).''.
    (b) Conforming Amendment.--The table of contents for chapter 117 is 
amended by adding at the end the following:

``11709. Arbitration of certain rail rate, practice, and common carrier 
                            service disputes.''.

SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE TRANSPORTATION BOARD.

    (a) In General.--Section 704, as amended by section 6 of this Act, 
is further amended--
            (1) by striking the section heading and inserting the 
        following:
``Sec. 704. Reports'';
            (2) by inserting ``(a) Annual Report.--'' before ``The 
        Board'' and indenting appropriately; and
            (3) by adding at the end the following:
    ``(b) Complaints.--
            ``(1) In general.--The Board shall establish and maintain a 
        database of complaints received by the Board.
            ``(2) Quarterly reports.--The Board shall post a quarterly 
        report of formal and informal service complaints received by 
        the Board during the previous quarter that includes--
                    ``(A) a list of the type of each complaint;
                    ``(B) the geographic region of each complaint; and
                    ``(C) the resolution of each complaint, if 
                appropriate.
            ``(3) Written consent.--The quarterly report may identify a 
        complainant that submitted an informal complaint only upon the 
        written consent of the complainant.
            ``(4) Website posting.--Each quarterly report shall be 
        posted on the Board's public website.''.
    (b) Conforming Amendment.--The table of contents for chapter 7 is 
amended by striking the item relating to section 704 and inserting the 
following:

``704. Reports.''.

SEC. 13. QUARTERLY REPORTS.

    Not later than 60 days after the date of enactment of this Act, the 
Surface Transportation Board shall begin providing quarterly reports to 
the Committee on Commerce, Science, and Transportation of the Senate 
and the Committee on Transportation and Infrastructure of the House of 
Representatives on the Surface Transportation Board's progress toward 
addressing the issues raised in each unfinished regulatory proceeding, 
regardless of whether the proceeding is subject to a statutory or 
regulatory deadline.

SEC. 14. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) as part of Docket No. EP 722, the Surface 
        Transportation Board should consider the costs and benefits of 
        the annual determinations of revenue adequacy for Class I 
        railroads;
            (2) the Surface Transportation Board should review the 
        methodology employed to define the business cycle in its annual 
        determination of revenue adequacy and consider undertaking, if 
        necessary, a rulemaking to define the business cycle;
            (3) as part of Docket No. EP 711, the Surface 
        Transportation Board should consider if a rulemaking proceeding 
        on mandatory competitive switching is needed to ensure a viable 
        competitive national rail system; and
            (4) if the Surface Transportation Board determines a 
        rulemaking proceeding on mandatory competitive switching is 
        needed, the Surface Transportation Board should ensure that 
        such rulemaking is completed in as timely a manner as possible.

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

    Section 705 is amended by striking paragraphs (1) through (3) and 
inserting the following:
            ``(1) $33,000,000 for fiscal year 2015;
            ``(2) $35,000,000 for fiscal year 2016;
            ``(3) $35,500,000 for fiscal year 2017;
            ``(4) $35,500,000 for fiscal year 2018; and
            ``(5) $36,000,000 for fiscal year 2019.''.

SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS.

    (a) Expired Rail Service Contract Limitation.--Section 10709 is 
amended by striking subsection (h).
    (b) Agent in the District of Columbia.--
            (1) Designation of agent and service of notice.--Section 72 
        is amended--
                    (A) in subsection (a), by striking ``in the 
                District of Columbia,''; and
                    (B) in subsection (c), by striking ``in the 
                District of Columbia''.
            (2) Service of process in court proceedings.--Section 
        724(a) is amended by striking ``in the District of Columbia'' 
        each place it appears.

SEC. 17. CONSTRUCTION.

    Nothing in this Act shall be construed to affect any suit commenced 
by or against the Surface Transportation Board, or any proceeding or 
challenge pending before the Surface Transportation Board, prior to the 
date of enactment of this Act.
                                 <all>