[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Rules and Regulations]
[Pages 45384-45387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15863]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1243

[STB Ex Parte No. 661 (Sub-No. 1)]


Rail Fuel Surcharge Reporting

AGENCY: Surface Transportation Board, Department of Transportation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board is amending its regulations 
to require Class I railroads to report certain data concerning fuel 
costs and fuel surcharges billed. The data reported pursuant to this 
rule will provide an overall picture of the use of fuel surcharges and 
will permit the Board to monitor the fuel surcharge practices of Class 
I carriers. The new rule will be codified as 49 CFR 1243.3. The 
reporting form can be found in an Appendix to this section.

DATES: This rule is effective November 12, 2007.

ADDRESSES: Comments and material received from the public, as well as 
documents referred to herein, are part of the Board's docket in STB Ex 
Parte No. 661 (Sub-No. 1) and are available for inspection or copying 
at the Board's Public Docket Room, Room 131, 395 E Street, SW., 
Washington, DC 20423-0001, are posted on the Board's Web site, at 
http://www.stb.dot.gov, and are available from the Board's contractor, 
ASAP Document Solutions (mailing address: Suite 103, 9332 Annapolis 
Rd., Lanham, MD 20706; e-mail address: [email protected]; telephone 
number: 202-306-4004).

FOR FURTHER INFORMATION, CONTACT: Joseph H. Dettmar at 202-245-0395. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: The Board instituted this proceeding, in 
conjunction with our decision in Rail Fuel Surcharges, STB Ex Parte No. 
661 (STB served Jan. 26, 2007), to solicit comments, pursuant to the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA) and Office of 
Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), 
regarding the Board's proposal to require all Class I (large) railroads 
to submit a monthly report containing the following information: (1) 
Total monthly fuel cost; (2) gallons of fuel consumed during the month; 
(3) increased or decreased cost of fuel over the previous month; and 
(4) total monthly revenue from fuel surcharges. In Rail Fuel 
Surcharges, STB Ex Parte No. 661 (Sub-No. 1) (STB served Jan. 26, 2007) 
(published at 72 FR 4676 on Feb. 1, 2007), the Board sought comments 
regarding: (1) Whether the particular collection of information 
described above is necessary for the proper performance of the 
functions of the Board, including whether the collection has practical 
utility; (2) the accuracy of the Board's burden estimates; (3) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (4) ways to minimize the burden of the collection of information on 
the respondents, including the use of automated collection techniques 
or other forms of information technology, when appropriate.

[[Page 45385]]

Comments

    The Board received comments on the proposed rules from the 
following shipper interests: Edison Electric Institute (EEI); National 
Grain and Feed Association (NGFA); North Dakota Grain Dealers 
Association (NDGDA); Snavely King Majoros O'Connor & Lee, Inc. 
(Snavely); Total Petrochemicals, USA, Inc. (Total). The Board also 
received comments from the following rail carriers: Canadian National 
Railway Company (CN); CSX Transportation, Inc. (CSX); Norfolk Southern 
Railway Company (NS); and Union Pacific Railroad Company (UP). All but 
NS support the reporting requirement. Railroads suggest several ways to 
minimize their reporting burden. In contrast, shippers suggest 
additional data that they assert should be collected to increase the 
report's utility. No comments were received on burden estimates.
    CN, CSXT, and UP suggest that the report be submitted quarterly, 
rather than monthly, to reduce the degree to which the data might be 
misinterpreted and to be consistent with reporting periods used by the 
Securities and Exchange Commission (SEC), as well as periods used by 
the STB for other reports. CSXT and UP also suggest that the deadline 
for submitting a report should be 30 days after the end of the 
reporting period (rather than 20 days, as proposed) to be more 
consistent with other STB reporting deadlines.
    CN, CSXT, and UP also ask the Board to clarify whether the report 
is intended to include data on both regulated and unregulated traffic. 
CN and CSXT argue that it would be difficult to segregate revenue by 
tariff, exempt, or contract traffic, while UP states that aggregated 
reporting (at least as to revenue derived from its numerous separate/
distinct fuel surcharge programs) may be more burdensome and may lead 
to confusion and misinterpretation. In addition, CSXT asks the Board to 
clarify whether reported rail fuel surcharge revenue should include all 
revenue earned/billed during the time period or only revenue collected, 
and whether reported fuel costs should include state fuel taxes.
    NS opposes this reporting requirement, arguing that Class I 
railroads must already submit extensive financial reports to the SEC. 
NS also argues that a carrier that does not impose a fuel surcharge on 
STB-regulated traffic should be exempt from this reporting requirement 
because its report would have no relation to any Board function.
    Shippers are generally concerned that the proposed Fuel Surcharge 
Report would not provide sufficient transparency to enable the Board 
and the public to monitor the fairness of the rail fuel-cost recovery 
practices. Additional data requested includes: Fuel consumption per the 
same unit (whether mile, ton-mile, car-mile, etc.) used by the carrier 
to assess the fuel surcharge; total ton-miles and/or car-miles; total 
recovery of fuel costs, whether by fuel surcharge or any other means; 
commodity-specific data; and data that distinguishes between freight 
that is subject to fuel surcharges and freight that is not.\1\
---------------------------------------------------------------------------

    \1\ WCTL would further separate the data between interchange and 
non-interchange traffic and would require data on mis-aligned 
surcharge threshold recovery (i.e., when the base rate for the fuel 
surcharge is below the fuel cost in the underlying rail rate, so 
that the carrier is ``double-dipping''), as well as the amount of 
fuel surcharge credits provided to shippers for months in which fuel 
costs fall below the level at the time the existing rate was 
established. Snavely argues that additional reporting would not 
burden carriers because they already submit fuel cost data to the 
Association of American Railroads as part of the Rail Cost 
Adjustment Factor.
---------------------------------------------------------------------------

    In addition, EEI and TOTAL ask the Board to direct that the report 
reference a single fuel index and a single, objective source of 
railroad miles. Snavely asks the Board to direct that the fuel 
surcharge data also be reported in the Waybill Sample (in the 
accessorial field) and to clarify that ``total fuel cost'' should 
exclude gains or losses from fuel hedging.
    The proposed rule was submitted to OMB for review as required under 
the PRA, 5 U.S.C. 3507(d) and 5 CFR 1320.11. No comments were received 
from OMB, which has tentatively approved the reporting requirement, 
pending publication and review of the final rule. OMB has 60 days to 
review the final rule. The Board will publish a separate notice of 
OMB's final action. This collection has been assigned Control Number 
2140-0014.\2\
---------------------------------------------------------------------------

    \2\ Unless reapproved, OMB approval for this report expires 3 
years after the date of approval of the final rules.
---------------------------------------------------------------------------

The Final Rule

    Under 49 U.S.C. 10702, the Board has authority to address the 
reasonableness of a rail carrier's practices. The Board also has 
specific authority under 49 U.S.C. 11145(a)(1) to require regulated 
rail carriers to file annual, periodic, and special reports with the 
Board. This rule to require the Report of Fuel Cost, Consumption, and 
Surcharge Revenues will provide an overall picture of the use of fuel 
surcharges and will permit the Board to monitor the current fuel 
surcharge practices of Class I carriers.

Scope of the Report

    The four line items originally proposed are intended to reflect 
aggregate data on fuel costs and fuel surcharge revenue. Although the 
underlying ruling adopted in STB Ex Parte No. 661--that the use of 
rate-based calculations to determine a fuel surcharge is an 
unreasonable practice--is applicable only to regulated traffic, several 
carriers argue that it would be unduly burdensome to require railroads 
to segregate the fuel costs and revenue for regulated traffic. We can 
discern no practical method for allocating fuel costs for regulated 
traffic alone. Therefore, we will not require railroads to segregate 
fuel costs.
    However, upon further reflection and review of the comments 
received, we believe that carriers should be required to segregate and 
separately report the total fuel-surcharge revenue collected from 
regulated traffic. Our decision to require these data is consistent 
with our concerns, as detailed in our decisions in STB Ex Parte No. 
661, regarding the potentially disparate impact of fuel surcharges on 
regulated shippers. Requiring these additional data, as urged by 
several commenters, will increase the utility of the report as a tool 
for monitoring the use of these surcharges on regulated traffic and 
should not unduly burden reporting railroads. This information should 
be readily available to reporting railroads because railroads bill 
shippers on an individual basis. If in practice this added requirement 
is more burdensome for a carrier than we anticipate, that carrier may 
bring that to our attention by seeking an individual exemption.
    We also clarify that the costs reported in lines 1 and 3 should 
include state fuel taxes, and that the revenue reported in line 4 
should be the revenue billed in that period rather than the revenue 
collected in that period.

Who Must Report

    All Class I carriers, even those that impose no fuel surcharges on 
regulated traffic, will be required to submit this report. This 
approach will better enable the Board to monitor industry-wide fuel 
surcharge practices. Moreover, unregulated traffic includes traffic 
that has been exempted under 49 U.S.C. 10502. Were these reports to 
suggest that a carrier was imposing fuel surcharges that over-recovered 
for its actual fuel costs, a shipper could file a complaint asking the 
Board to investigate and revoke an exemption under section 10502(d).

[[Page 45386]]

Frequency and Due Date of Reports

    Based on the comments received, we will require these reports to be 
submitted on a quarterly basis, due 30 days after the end of the 
reporting period. As the railroads point out, these changes will make 
this reporting requirement more consistent with other financial 
reporting to the Board and to the SEC. These changes will decrease the 
reporting burden on carriers while retaining the utility of the 
reports. The aggregated nature of the data, combined with the longer 
reporting interval, will provide a more useful and reliable regulatory 
tool for monitoring the relationship between changes in revenues and 
costs.

Suggestions To Require Additional Data

    With the one exception noted above, we will not require carriers to 
submit additional data in this report.\3\ The Fuel Surcharge Report is 
intended to provide an overall picture of the use of fuel surcharges. 
It is not intended as a substitute for evidence brought in an 
individual case.
---------------------------------------------------------------------------

    \3\ Any suggestion to add information on fuel surcharge data 
into the Waybill Sample would be more properly addressed in a 
petition for a rulemaking involving the Waybill Sample.
---------------------------------------------------------------------------

Regulatory Flexibility Analysis

    The Board concludes that this action will not have a significant 
economic effect on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

List of Subjects in 49 CFR Part 1243

    Railroads, Reporting and recordkeeping requirements.

    Authority: 49 U.S.C. 721, 49 U.S.C. 11145.

    Decided: August 8, 2007.

    By the Board, Chairman Nottingham, Vice Chairman Buttrey, and 
Commissioner Mulvey.
Vernon A. Williams,
Secretary.

0
For the reasons set forth in the preamble, the Surface Transportation 
Board amends part 1243 of title 49, chapter X, of the Code of Federal 
Regulations as follows:

PART 1243--QUARTERLY OPERATING REPORTS--RAILROADS

0
1. The authority citation for part 1243 continues to read as follows:

    Authority: 49 U.S.C. 721, 49 U.S.C. 11145.

0
2. Add a new Sec.  1243.3 to read as follows:


Sec.  1243.3  Report of fuel cost, consumption, and surcharge revenue.

    Commencing with reports for the 3 months beginning October 1, 2007, 
all Class I railroads are required to file quarterly a Report of Fuel 
Cost, Consumption, and Surcharge Revenue, in accordance with the 
Board's reporting form. Such reports shall be filed, in duplicate, with 
the Office of Economics, Environmental Analysis, and Administration, 
Surface Transportation Board, Washington, DC 20423-0001, within 30 days 
after the end of the quarter reported.

Appendix to Section 49 CFR 1243.3

OMB Control No. 2140-0014
Expires --------, 2010

Railroad Name ------------

[[Page 45387]]



  Quarterly Report of Fuel Cost, Consumption, and Surcharge Revenue for
                   the Quarter Ending --------, 20----
   [Instructions: The report shall contain data only for the reported
quarter. Cost and revenue are defined as accrued or earned that quarter.
  The report shall be filed with the Surface Transportation Board on or
             before 30 days after the end of that quarter.]
------------------------------------------------------------------------
                                                           Amount  (in
        Line No.                    Data  (a)            thousands)  (b)
------------------------------------------------------------------------
1.......................  Total fuel cost \1\.........  ................
2.......................  Total gallons of fuel         ................
                           consumed \1\.
3.......................  Total increase or decrease    ................
                           in cost of fuel \2\.
4.......................  Total revenue from fuel       ................
                           surcharges \3\.
5.......................  Revenue from fuel surcharges  ................
                           on regulated traffic.
------------------------------------------------------------------------
\1\ Include fuel for freight, yard and work train locomotives. Include
  fuel charged to train and yard service (function 67--Locomotive
  Fuels). Include all other fuel used for railroad operations and
  maintenance, including motor vehicles and power equipment not charged
  to function 67--Locomotive Fuels.
\2\ Show the total increase or decrease in fuel cost over previous
  quarter.
\3\ Show Fuel surcharges billed for all traffic (line 4) and for only
  regulated traffic (line 5).

    I, the undersigned, ------------, Title: ------------, state 
that this report was prepared by me or under my supervision and that 
I have carefully examined it and on the basis of my knowledge, 
belief, and verification declare it to be full, true and correct.

Supplemental Information About the Fuel Surcharge Report

    The following information is provided in compliance with OMB 
requirements, pursuant to the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501 et seq.:
    Information in this report is intended to permit the Board to 
monitor the fuel surcharge practices of Class I carriers.
    The estimated annual hourly, per respondent burden for filing 
this report is 12 hours.
    This report is mandatory for Class I carriers.
    Information collected through this report is published on the 
Board's website and is maintained by the agency for at least 2 
years.
    The display of a currently valid OMB control number for this 
collection is required by law. Under 5 CFR 1320.5(b), persons are 
not required to respond to this collection of information unless it 
displays a currently valid OMB control number.

[FR Doc. E7-15863 Filed 8-13-07; 8:45 am]
BILLING CODE 4915-01-P