[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Proposed Rules]
[Page 16712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7408]



[[Page 16712]]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1244

[STB Ex Parte No. 646 (Sub-No. 3)]


Waybill Data Released in Three-Benchmark Rail Rate Proceedings

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board proposes to amend its rules with respect to the 
Three-Benchmark methodology used to adjudicate rate complaints. The 
proposed rule would provide for the release to the parties of the 
unmasked Waybill Sample data of the defendant carrier for the 4 years 
that correspond with the most recently published Revenue Shortfall 
Allocation Method (RSAM) figures. The parties would then use the 
released Waybill Sample data in any configuration they see fit to form 
their comparison groups. The Board seeks comments concerning the amount 
of data that would be available under the proposed rule and the 
proposal that the parties could draw from all 4 years of waybill data 
to form their comparison groups.

DATES: Comments on this proposal are due by May 3, 2010. Replies are 
due by June 1, 2010.

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.dot.gov. 
Any person submitting a filing in the traditional paper format should 
send an original and 10 copies to: Surface Transportation Board, Attn: 
STB Ex Parte No. 646 (Sub-No. 3), 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: Valerie Quinn at (202) 245-0382. 
(Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.)

SUPPLEMENTARY INFORMATION: In Simplified Standards for Rail Rate Cases, 
STB Docket No. 646 (Sub-No. 1) (Simplified Standards) (STB served Sept. 
5, 2007), aff'd sub nom. CSX Transp., Inc. v. STB, 568 F.3d 236 (D.C. 
Cir. 2009) (CSX Transp. I), and vacated in part on reh'g, CSX Transp., 
Inc. v. STB, 584 F.3d 1076 (D.C. Cir. 2009) (CSX Transp. II), the Board 
modified its simplified rail rate guidelines, creating a simplified 
stand-alone cost approach for medium-size rail rate disputes and 
revising its Three-Benchmark approach for smaller rail rate disputes.
    The Three-Benchmark method compares a challenged rate to the rates 
of a comparison group drawn from the Waybill Sample data. The Waybill 
Sample is a statistical sampling of railroad waybills that is collected 
and maintained for use by the Board. See 49 CFR 1244. The proposed rule 
in Simplified Standards would have required parties to draw their 
comparison groups from the most recent year of Waybill Sample data. 
Slip op. at 32-33 (STB served July 28, 2006). The final rule, however, 
allowed parties to form comparison groups using Waybill Sample data 
from the 4 years that corresponded with the most recently published 
RSAM figures. Simplified Standards, slip op. at 18, 80 (STB served 
Sept. 5, 2007).
    Several railroads \1\ and the Association of American Railroads 
(collectively, petitioners) challenged the aforementioned final rule in 
court on the basis that, under 5 U.S.C. 553(b)(3), the Board had not 
provided adequate notice and opportunity to comment on the expansion 
from 1 to 4 years of data from which the parties could draw to form 
their proposed comparison groups. CSX Transp. I, 568 F.3d at 246. 
Initially, the court determined that it would not address the merits of 
petitioners' argument because the issue had not been presented to the 
Board prior to seeking judicial review and, therefore, had been waived. 
Id. at 246-47.
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    \1\ Canadian Pacific Railway Co., Soo Line Railroad Company, 
Delaware & Hudson Railway Company, CSX Transportation, Inc., Norfolk 
Southern Railway Company, and Union Pacific Railroad Company.
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    On rehearing, however, the court reversed its waiver determination 
and considered the merits of petitioners' argument. The court concluded 
that the Board had failed to provide adequate notice of the final rule 
regarding the available range of Waybill Sample data. Accordingly, the 
court vacated that portion of Simplified Standards. CSX Transp. II, 584 
F.3d at 1083.
    For Three-Benchmark proceedings, the Board now proposes to release 
to the parties the unmasked Waybill Sample data of the defendant 
carrier for the 4 years that correspond with the most recently 
published RSAM figures. The Board also proposes to permit the parties 
to draw their proposed comparison groups in any combination they choose 
from the released Waybill Sample data. The Board will consider comments 
on both of these proposals.
    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, generally 
requires a description and analysis of final rules that will have 
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. 5 U.S.C. 601-604. In its notice 
of proposed rulemaking, the agency must either include an initial 
regulatory flexibility analysis, 5 U.S.C. 603(a), or certify that the 
proposed rule will not have a ``significant impact on a substantial 
number of small entities,'' 5 U.S.C. 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. Ass'n v. Conner, 553 
F.3d 467, 480 (7th Cir. 2009).
    The rule proposed here would be permissive, not mandatory; i.e., it 
would provide a rate complainant and the defendant railroad (possibly 
small entities) the option of using more data, but the proposed rule 
would not force them to use all of that data. Accordingly, pursuant to 
5 U.S.C. 605(b), the Board certifies that the regulations proposed 
herein would not have a significant impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act. 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.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: March 29, 2010.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Nottingham.
Kulunie L. Cannon,
Clearance Clerk.
[FR Doc. 2010-7408 Filed 4-1-10; 8:45 am]
BILLING CODE 4915-01-P