[Federal Register Volume 84, Number 194 (Monday, October 7, 2019)]
[Proposed Rules]
[Pages 53375-53380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21627]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1250
[Docket No. EP 724 (Sub-No. 5)]
Petition for Rulemaking; Railroad Performance Data Reporting
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (STB or Board) grants in part
a petition filed by the American Chemistry Council (ACC) to amend the
Board's railroad performance data reporting regulations. Specifically,
the Board proposes to modify its regulations to include chemical and
plastics traffic as a distinct reporting category for the ``cars-held''
metric.
DATES: Comments are due by December 6, 2019. Reply comments are due by
January 6, 2020.
ADDRESSES: Comments and replies may be filed with the Surface
Transportation Board either via e-filing or in writing addressed to:
Surface Transportation Board, Attn: Docket No. EP 724 (Sub-No. 5), 395
E Street SW, Washington, DC 20423-0001. Comments and replies will be
posted to the Board's website at www.stb.gov.
FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: The Board's railroad performance data
reporting regulations at 49 CFR part 1250, which became effective on
March 21, 2017, require all Class I carriers and the Chicago
Transportation Coordination Office (CTCO), through its Class I members,
to report certain service performance metrics on a weekly, semiannual,
and occasional basis.
On December 6, 2018, ACC filed a petition for rulemaking \1\ to
amend those data reporting regulations to: (1) Include chemical and
plastics (Standard Transportation Commodity Code (STCC) 28, except
fertilizer) \2\ traffic as a distinct reporting category for the
``cars-held'' metric at 49 CFR 1250.2(a)(6); (2) amend 49 CFR 1250.3(a)
to clarify that yard dwell must be reported for each yard subject to
average daily car volume reporting; \3\ and (3) extend the same types
of terminal reporting requirements that are applicable to the Chicago
gateway (as clarified by comments filed by ACC on May 6, 2019) to the
New Orleans, East St. Louis, and Memphis gateways (together, the
Mississippi Gateways). (Pet. 1, 5; ACC Comments 1, 12-13.)
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\1\ On December 12, 2018, ACC filed an errata to its petition.
\2\ ACC excludes the fertilizer reporting category of STCC 28
from its request because fertilizer is already included in the
Board's data reporting regulations under 49 CFR 1250.2(a)(6). (See
Pet. 6.)
\3\ ACC initially sought to extend the weekly average terminal
dwell time reporting requirement at 49 CFR 1250.2(a)(2) to include
all Class I, terminal, and switching carriers at the Chicago
gateway. However, as described below, in its comments filed on May
6, 2019, ACC withdraws this part of its initial request and instead
seeks the amendment described here.
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On January 28, 2019, the Association of American Railroads (AAR)
filed a reply in opposition to ACC's petition. By decision served on
April 5, 2019 (April Decision), the Board opened a rulemaking
proceeding and directed ACC and AAR to provide additional information
regarding ACC's proposed amendments to the regulations. Pursuant to
that decision, ACC and AAR each filed comments on May 6, 2019, and AAR
filed reply comments on May 20, 2019.
After considering the petition for rulemaking and the comments
received, the Board will grant ACC's petition in
[[Page 53376]]
part and propose to include chemical and plastics (STCC 28, except
fertilizer) \4\ traffic as a distinct reporting category for the cars-
held metric at 49 CFR 1250.2(a)(6). The Board will deny ACC's petition
with regard to its other requested amendments.
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\4\ STCC 28 is designated for ``chemicals or allied products''
and referred to generally by ACC as ``chemical and plastics''.
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Background
In 2014, the Board initiated a rulemaking proceeding to establish
new regulations requiring all Class I railroads and the CTCO, through
its Class I members, to report certain service performance metrics on a
weekly basis. See U.S. Rail Serv. Issues--Performance Data Reporting
(2014 NPRM), 80 FR 473 (Jan. 6, 2015), EP 724 (Sub-No. 4) (STB served
Dec. 30, 2014).\5\ The primary purpose of that rulemaking proceeding
was to develop a set of performance data that would allow the agency to
monitor current service conditions in the industry and improve the
Board's ability to identify and help resolve future regional or
national service disruptions more quickly, should they occur. Id. at 3.
The Board adopted its final rule on November 30, 2016, U.S. Rail
Service Issues--Performance Data Reporting (Final Rule), 81 FR 87472
(Dec. 5, 2016), EP 724 (Sub-No. 4) (STB served Nov. 30, 2016), and the
rule became effective on March 21, 2017 (82 FR 9529 (Feb. 7, 2017)).\6\
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\5\ For a background of the service problems that led to the
Board initiating the 2014 proceeding, see 2014 NPRM, EP 724 (Sub-No.
4), slip op. at 2-3.
\6\ By decision served on March 13, 2017, the Board issued a
technical correction to the final rule to include an additional
fertilizer STCC in addition to the 14 fertilizer STCCs initially
included. U.S. Rail Serv. Issues--Performance Data Reporting, 82 FR
13401 (March 13, 2017), EP 724 (Sub-No. 4) (STB served Mar. 13,
2017).
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In its petition, ACC argues that its requested changes ``are
desirable to give the Board and shippers consistent service metrics
across railroads that provide adequate visibility into critical aspects
of the national rail system.'' (Pet. 1.) ACC states that STCC 28
traffic accounts for the highest number of manifest carloads, compared
to all other two-digit STCC groups, and plays a key role in the
national economy. (Id.) ACC also states that STCC 28 traffic is vital
to many essential goods and services for consumers and a variety of
industries, such as chlorine and other treatment chemicals for the
purification of public water supplies, plastics and polymers for use in
the manufacturing of automobiles, and various plastics and chemicals
for use in the manufacturing of pharmaceuticals and medical devices.
(Id. at 6-7.) According to ACC, STCC 28 traffic is especially
vulnerable to rail service problems because it cannot readily shift to
alternative rail carriers or to other modes. (Id. at 7.)
ACC maintains that requiring accurate and consistent reporting of
STCC 28 service metrics across rail carriers would enable early
identification of service issues and a better opportunity to mitigate
them. (Id.) ACC also states that STCC 28 traffic is an important
bellwether of service issues, because it moves long distances and is a
leader in traffic volume, second only to coal in total carloads, which
means that service issues have a deeper impact on STCC 28 commodities
than most other commodity groups. (Id. at 9.) Further, ACC states that
STCC 28 traffic is more likely to signal congestion at terminals than
many other existing categories for the cars-held metric, because it
moves almost exclusively in manifest service that must be switched
individually or in small blocks at terminals (whereas the existing
categories mostly represent unit train traffic, which requires little
or no switching at terminals). (Id. at 10.)
Additionally, ACC states that extending the same types of Chicago
reporting requirements, including dwell time, to the Mississippi
Gateways is important because the problems of one carrier at these
points can have a cascading effect on other carriers in the national
network. (Id. at 11.) ACC states that information about service at the
Mississippi Gateways is especially important for STCC 28 traffic
because a high proportion of this traffic originates in the west and
interchanges at the Mississippi Gateways to reach destinations in the
east. (Id. at 12.)
In its reply to ACC's petition, AAR argues that the Board should
not adopt additional commodity-specific reporting, (AAR Reply 2-4, Jan.
28, 2019), and that joint Mississippi Gateways information is
unnecessary and would be unduly burdensome (id. at 5-6). AAR argues
that a narrow focus on subsets of rail traffic can remove important
context from the full picture of a globalized supply chain, that
commodity-specific reporting is particularly susceptible to such
distortion, and that granular reports are therefore of limited benefit.
(Id. at 2-4.) AAR further argues that continuous changes to the Board's
reporting rules would impose ongoing costs to railroads that would need
to make programming changes to their systems to comply, and that ACC
had the opportunity to advocate for chemical-specific reporting during
the initial formulation of the reporting rules but did not make such a
proposal. (Id. at 3.) Additionally, with respect to the Mississippi
Gateways reporting, AAR states that, because the Mississippi Gateways
do not have the equivalent of the CTCO,\7\ any joint service report
would need to be built from the ground up from data from individual
carriers. AAR states that this would be burdensome to undertake, and
that the burden is not justified. (Id. at 5-6.)
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\7\ AAR states that the CTCO currently reports weekly average
terminal dwell in hours for 11 individual Chicago yards and an
average of the group. (AAR Reply 4, Jan. 28, 2019.) AAR further
states that the CTCO reports encompass the six Class I railroads and
both terminal and switching railroads that operate in Chicago. (Id.)
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In the April Decision, 84 FR 14907 (April 12, 2019), EP 724 (Sub-
No. 5), slip op. at 2, the Board opened a rulemaking proceeding and
directed ACC and AAR to provide additional information. Specifically,
the Board directed ACC to elaborate on shippers' experiences using
performance data reported under the existing rules to inform their
business and supply chain decision-making. Id. The Board directed ACC
to explain how the additional data requested would materially enhance
that decision-making with reference to specific scenarios or real-world
circumstances, and, if possible, that ACC quantify the value of
additional reporting. Id. The Board also directed ACC to provide
additional data supporting its selection of the Mississippi Gateways
relative to other terminal locations, both in terms of their
significance to the overall rail network and specifically to chemical
traffic shipments. Id. Additionally, the Board directed ACC to explain
in greater detail why the existing performance data reported pursuant
to Sec. 1250.2(a)(2) are insufficient indicators as to rail
performance across the network, including at the Mississippi Gateways.
April Decision, EP 724 (Sub-No. 5), slip op. at 2.
The Board directed AAR to explain in greater detail the
``programming changes'' railroads would need to make to comply with the
proposed reporting requirements; the ``other costs'' that would be
associated with complying with the proposed reporting requirements; and
the specific process individual carriers would need to undertake to
build ``from the ground up data'' to compile a joint service report at
each proposed Mississippi Gateway location. Id. The Board also directed
AAR to provide data that further describes or quantifies the ``ongoing
costs'' and ``burden'' of the proposed changes. Id.
In response to the April Decision, ACC and AAR each filed
subsequent
[[Page 53377]]
comments, and AAR filed a reply.\8\ ACC argues that existing
performance data reporting has played a crucial role in helping ACC's
membership address rail service issues. (ACC Comments 2.) ACC provides
several specific examples of how the existing data reporting has helped
its members. Among those examples, ACC explains how one member used a
carrier's specific data to elevate the member's concerns and establish
regular communication with the carrier to address service issues, as
well as an example of how a member used such data to make operational
and business planning decisions. (Id. at 2-5.) ACC states that, with
the additional reporting metrics it proposes, chemical shippers would
be better prepared to identify rail service issues, address them with
railroads, make internal operational adjustments, and manage their
railcar fleet. (Id. 5-6.) According to ACC, railroads are generally
reluctant to collaborate on service issues unless the shipper is able
to provide data identifying the issue and possible solutions. (Id. at
9.) ACC asserts that the additional reporting would enable shippers to
engage with railroads to identify alternative routings involving the
Mississippi Gateways or address network issues impacting STCC 28
traffic. (Id.) ACC states that the additional reporting would also
enhance shippers' ability to internally manage service issues and may
lead to substantial cost savings. (Id.) ACC provides specific examples
of how its members would benefit from the additional data reporting.
(Id. at 9-11.)
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\8\ As noted earlier, in its comments ACC withdraws its second
request to extend the reporting at 49 CFR 1250.2(a)(2) to the
Chicago gateway, and instead seeks revisions to the Chicago terminal
reporting requirements to clarify that yard dwell must be reported
for each yard subject to average daily car volume reporting. See
supra note 3.
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In its May 6 comments, as described further below, AAR provides
information on the formation and development of the CTCO and programs,
efforts, and systems to collect and report performance data on the
Chicago terminal. (AAR Comments 2-6, May 6, 2019.) AAR also provides
quantitative estimates of the costs associated with each of ACC's
requested reporting requirement changes. (Id. at 7-10.) In its reply,
AAR argues that ACC has failed to demonstrate that the additional
reporting would have public benefits tied to the Board's regulatory
authority that would justify the expense and burden that reporting
would place on carriers. (AAR Reply 2, May 20, 2019.) Additionally,
according to AAR, ACC's filings illustrate continued misconceptions
regarding the utility of railroad performance metrics. (Id. at 4.) AAR
also argues that the utility of railroad service data is limited to
identifying changes and trends on a particular railroad, and that the
data cannot reliably be used to understand causality, compare rail
performance across different commodities or time periods, or compare
railroads. (Id. at 4-5.)
Discussion of ACC's Requests
ACC Request #1: Include chemical and plastics (STCC 28) traffic as
a distinct reporting category for the cars-held metric at 49 CFR
1250.2(a)(6). According to ACC, separately reporting cars-held data for
STCC 28 traffic would enable shippers to identify regional issues
affecting that traffic. (ACC Comments 6.) ACC argues that the cars-held
metric is an important indicator of rail system fluidity, and that for
STCC 28 traffic, a fluid rail system is especially important in the
Gulf Coast, where a substantial portion of this traffic is
concentrated. (Id.) ACC asserts that the current data reporting masks
the severity of service events having a disproportionate impact on STCC
28 traffic, and ACC provides charts that it asserts show an example of
this dynamic. (Id. at 6-7.) ACC reiterates that additional reporting
will enhance shippers' ability to internally manage service issues and
may lead to substantial cost savings. (Id. at 9).
AAR responds that additional reporting of STCC 28 traffic as a line
item in the ``cars-held for more than 48 hours'' report would
necessitate each Class I carrier to alter the coding necessary to pull
the data prescribed by the Board. (AAR Comments 9-10.) According to
AAR, the cost associated with this request would total approximately
$34,000 for all seven Class I railroads, as it would require three to
four employees totaling roughly 80 hours to update existing computer
coding, write new code to modify the search parameters, test new code
against existing systems to make sure it does not cause problems, and
have the new code approved. (Id. at 10.) AAR again objects to
``continuous changes to the Board's reporting rules,'' as such changes
``impose ongoing costs to railroads that would need to make programming
changes to their systems to enable compliance.'' (Id. at 9 (quoting AAR
Reply 3, Jan. 28, 2019).) AAR again notes that ACC had the opportunity
to make this request in the past and failed to do so. (AAR Comments 9.)
After considering ACC's petition and the responsive comments filed,
the Board concludes that including STCC 28 traffic as a distinct
reporting category for the cars-held metric at 49 CFR 1250.2(a)(6)
would be reasonable, warranted, and consistent with the rail
transportation policy (RTP) of 49 U.S.C. 10101. As explained in the
Final Rule in EP 724 (Sub-No. 4), service adequacy is a key part of the
Board's mandate under the Interstate Commerce Act. Final Rule, EP 724
(Sub-No. 4), slip op. at 5. Pursuant to the RTP, in regulating the
railroad industry, it is the policy of the United States Government to
minimize the need for regulatory control, 49 U.S.C. 10101(2), promote a
safe and efficient rail transportation system, 49 U.S.C. 10101(3),
ensure the development of a sound rail transportation system to meet
the needs of the public, 49 U.S.C. 10101(4), and encourage efficient
management of railroads, 49 U.S.C. 10101(9). ACC's requested amendment
to 49 CFR 1250.2(a)(6) would advance these RTP goals.\9\ The additional
data reporting on chemical and plastics traffic would promote the RTP
by allowing the agency, as well as shippers and other stakeholders, to
more quickly identify and respond to service issues related to these
important commodities. ACC has demonstrated both the critical
importance of this particular traffic as well as the benefits to
specifically identifying this traffic in the cars-held metric.\10\
Reporting of chemicals and plastics as a stand-alone category of cars
holding for 48 hours or longer would, in addition to allowing the Board
and shippers to monitor the fluidity of these commodities vital to
essential goods and services, have the potential to help shippers
address such issues privately with railroads, make operational
adjustments, and improve their business planning, including though the
management of their rail car fleets. These private solutions, without
further involvement by the Board, could reduce the need for litigation
and could lower overall costs of the provision of these commodities. In
light of these significant public benefits, AAR has not shown in its
comments to date that the modest one-time coding cost it describes
[[Page 53378]]
would be unduly burdensome to the reporting railroads.
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\9\ Further, as discussed in the Final Rule, the Board has the
responsibility for monitoring the adequacy of service under specific
statutory provisions, including service emergencies under 49 U.S.C.
11123. Moreover, service issues can also be relevant when the Board
considers whether railroad service practices are reasonable, 49
U.S.C. 10702, whether to force a line sale in the event of
inadequate service, 49 U.S.C. 10907, and whether railroads are
fulfilling their common carrier obligations, 49 U.S.C. 11101, or
providing safe and adequate car service 49 U.S.C. 11121. Final Rule,
EP 724 (Sub-No. 4), slip op. at 5.
\10\ AAR concedes that ``granular reports'' provide at least a
certain ``limited benefit.'' (AAR Reply 4, Jan. 28, 2019.)
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ACC Request #2: Amend 49 CFR 1250.3(a) to clarify that yard dwell
must be reported for each yard subject to average daily car volume
reporting. In lieu of its initial request, ACC instead seeks amendments
to the Chicago terminal reporting requirements that ACC states would
clarify that yard dwell must be reported for each yard subject to
average daily car volume reporting. (ACC Comments 1.) ACC claims that,
while reviewing the Chicago reporting, ACC discovered a disconnect
between the current reporting practice and the Chicago terminal
reporting rule. (Id. at 12.) ACC states that AAR has been reporting the
seven-day average yard dwell for the Chicago terminal yards that are
subject to average daily car volume reporting under 49 CFR 1250.3(a).
(Id.) According to ACC, the Board appears to have required this
reporting in its decision that issued the Chicago terminal reporting
requirements, but the Board did not include the requirement in the
rule's text. (Id., citing Final Rule, EP 724 (Sub-No. 4), slip op. at
22-23.) ACC requests that the Board make clarifying edits to 49 CFR
1250.3(a) to capture the full scope of required reporting. (Id. at 12-
13.)
AAR asserts that the ``disconnect'' noted by ACC is merely the text
of the Board's decision that accepted AAR's offer to voluntarily report
the metrics that were already being shared with Chicago stakeholders.
(AAR Reply 5-6, May 20, 2019.) AAR argues that the Board should not
codify that voluntary report; instead, the Board should allow the
railroads and Chicago stakeholders the flexibility to change reports as
business and technology changes warrant, without having to come back to
the Board and petition it to begin a rulemaking proceeding. (Id. at 6.)
The Board does not agree with ACC's claim of a disconnect between
the Board's decision and the rule as codified, which is the sole basis
for ACC's request to amend 49 CFR 1250.3(a). The Board explicitly
stated in the Final Rule that it would ``accept the AAR's voluntary
offer to include the data it is reporting to [the Chicago Metropolitan
Agency for Planning] in CTCO's report to the Board.'' Final Rule, EP
724 (Sub-No. 4), slip op. at 23 (emphasis added). The Board further
stated that, ``[t]he final rule, as augmented by the data that AAR has
offered to submit voluntarily, will continue to maintain a robust view
of operating conditions in the Chicago gateway.'' Id. (emphasis added).
Accordingly, there is no confusion regarding the scope of required
reporting for Chicago. Therefore, the Board will deny ACC's request to
amend 49 CFR 1250.3(a).
ACC Request #3: Extend the terminal reporting requirements
applicable to the Chicago gateway to the Mississippi Gateways. ACC
states that it requests additional data reporting for the Mississippi
Gateways because a substantial amount of its members' traffic move
through these gateways. According to ACC, ``multiple large ACC members
indicated that approximately 25% of their traffic moves through the
Mississippi Gateways.'' (ACC Comments 11.) However, ACC states that it
is unable to provide additional data regarding the Mississippi Gateways
because the Public Use Waybill Sample does not identify specific
interchange locations. (Id.) ACC states that, for additional data
regarding the volume of STCC 28 traffic moving through the Mississippi
Gateways, the Board could review the Confidential Carload Waybill
Sample (CCWS), which would enable the Board to calculate the volume of
STCC 28 traffic moving through the Mississippi Gateways as well as
other gateway locations. (Id.) ACC states that it would support the
inclusion of additional gateways that the Board determines are
significant to the overall rail network. (Id.)
According to ACC, the Mississippi Gateways are complex terminals
with many interchange yards and multiple carriers, and congestion may
impact some, but not all, of the yards and carriers serving a gateway.
(Id. at 7-8.) Therefore, ACC requests that the proposed Mississippi
Gateway reporting provide the terminal- and yard-level data necessary
for chemical shippers to pinpoint service issues in these gateways.
(Id. at 8.) ACC indicates that this information could be used to
anticipate bunching and other delays. (Id.) ACC states that this
information would allow members to know whether a Mississippi Gateway
issue is attributable to a carrier or a specific gateway yard and to
plan accordingly. (Id. at 10.)
ACC also argues that the additional data reporting would enable
shippers to more accurately predict their transit times and, thus, more
efficiently manage their own private railcar fleets. (Id.) For example,
according to ACC, the data would enable a member to identify the source
of gateway dwells and reduce its fleet accordingly, and potentially
help an ACC member advocate for shifting traffic from one gateway to
another. (Id. at 10-11.)
AAR maintains that ACC has not justified its request for joint
reporting of metrics from the Mississippi Gateways. (AAR Reply 3, May
20, 2019.) As noted above, in its May 6, 2019 comments, AAR describes
the circumstances that gave rise to the formation of the CTCO and the
development of programs, efforts, and systems to address the complexity
of Chicago operations, as well as the significant estimated costs of
replicating them in the Mississippi Gateways. (AAR Comments 2-9.) AAR
estimates that the cost to the Class I carriers of reproducing the
joint yard inventory, yard dwell, and trains held reports for the
Mississippi Gateways would total approximately $1.6 million in initial
development, and approximately $330,000 in annual maintenance expenses.
(Id. at 6-7.) AAR argues that the Mississippi Gateways do not approach
the complexity associated with Chicago operations, nor are any of the
Mississippi Gateways as central to the national rail network. (AAR
Reply 3, May 20, 2019.) AAR also states that, while ACC's members
report that approximately 25% of their individual traffic moves through
the Mississippi Gateways, ACC does not attempt to prove that this
sampling is representative of chemical traffic generally. (Id.) In
response to ACC's suggestion that the Board review the CCWS, AAR
cautions that the CCWS contains information on commercial interchanges,
not necessarily the operational interchanges reflecting where traffic
actually moved, so the CCWS can give the Board only a rough
understanding of the volume of interchange traffic at each Mississippi
Gateway. (Id. at 3-4.)
The Board finds that ACC's petition and comments do not provide
adequate justification to extend the terminal reporting requirements
applicable to Chicago to the Mississippi Gateways at this time. The
Board has focused on reporting at Chicago due to Chicago's unique
importance to the overall fluidity of the national rail network. See,
e.g., 2014 NPRM, EP 724 (Sub-No. 4), slip op. at 6 (reiterating ``the
longstanding importance of Chicago as a hub in national rail operations
and the impact that recent extreme congestion in Chicago has had on
rail service in the Upper Midwest and nationwide''). ACC has not
demonstrated, nor does analysis of the waybill support,\11\ that the
Mississippi Gateways have a similar level of importance across
commodities and the rail network. Furthermore, ACC
[[Page 53379]]
has not sufficiently explained why the data already collected from each
Class I carrier's 10 largest terminals is inadequate to identify
problems with fluidity of STCC 28 traffic across the national network,
especially if the existing data reporting requirements for the largest
terminals are enhanced by the Board's proposal to require separate
reporting of cars held for chemical and plastics traffic. Given the
costs asserted by AAR of providing such information, ACC has not
provided sufficient data to demonstrate the benefits of a separate
reporting mechanism at the Mississippi Gateways. Based on the
foregoing, the Board concludes that the requested reporting is not
warranted at this time and therefore will deny this request.
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\11\ The Office of Economics reviewed the confidential Waybill
Sample data for 2017 and determined that 831,606 cars were
interchanged in Chicago, while only 410,320 cars were interchanged
in the Mississippi Gateways combined.
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Proposed Rule
For the reasons discussed above, and as set forth below, the Board
proposes to include chemical and plastics (STCC 28, except fertilizer)
traffic as a distinct reporting category for the ``cars-held'' metric
at 49 CFR 1250.2(a)(6). Interested persons may comment on the proposed
rule by December 6, 2019; replies are due by January 6, 2020.
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. Sections 601-604. In
its notice of proposed rulemaking, the agency must either include an
initial regulatory flexibility analysis, Section 603(a), or certify
that the proposed rule would not have a ``significant impact on a
substantial number of small entities,'' Section 605(b). Because the
goal of the RFA is to reduce the cost to small entities of complying
with federal regulations, the RFA requires an agency to perform a
regulatory flexibility analysis of small entity impacts only when a
rule directly regulates those entities. In other words, the impact must
be a direct impact on small entities ``whose conduct is circumscribed
or mandated'' by the proposed rule. White Eagle Coop v. Conner, 553
F.3d 467, 480 (7th Cir. 2009).
The Board's proposed change to its regulations here is intended to
improve the quality of the service data reported by Class I carriers
and does not mandate or circumscribe the conduct of small entities. For
the purpose of RFA analysis for rail carriers subject to the Board's
jurisdiction, the Board defines a ``small business'' as only including
those rail carriers classified as Class III rail carriers under 49 CFR
1201.1-1. See Small Entity Size Standards Under the Regulatory
Flexibility Act, 81 FR 42566 (June 30, 2016), EP 719 (STB served June
30, 2016) (with Board Member Begeman dissenting).\12\ The change
proposed here is limited to Class I carriers. Therefore, the Board
certifies under 5 U.S.C. 605(b) that the proposed rule, if promulgated,
would not have a significant economic impact on a substantial number of
small entities within the meaning of the RFA. 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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\12\ Class III carriers have annual operating revenues of $20
million or less in 1991 dollars or $39,194,876 or less when adjusted
for inflation using 2018 data. Class II carriers have annual
operating revenues of less than $250 million or $489,935,956 when
adjusted for inflation using 2018 data. The Board calculates the
revenue deflator factor annually and publishes the railroad revenue
thresholds in decisions and on its website. 49 CFR 1201.1-1;
Indexing the Annual Operating Revenues of R.Rs., 84 FR 27829 (June
14, 2019), EP 748 (STB served June 14, 2019).
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Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521,
Office of Management and Budget (OMB) regulations at 5 CFR
1320.8(d)(3), and appendix, the Board seeks comments about the impact
of the amendments in the proposed rules to the currently approved
collection of the United States Rail Service Issues-Performance Data
Reporting (OMB Control No. 2140-0033) regarding: (1) Whether the
collection of information, as modified in the proposed rule and further
described below, 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. The Board
estimates that the new requirement to include chemical and plastics
(STCC 28) traffic as a distinct reporting category would add a one-time
hour burden of 15 hours (or 45 hours amortized over three years) per
railroad because the railroads will need to update their existing
reporting software programs to implement this change.\13\ In addition
to the burden of the one-time programming change, the Board estimates
that the annual hour burden of this collection has decreased over the
last two-plus years to approximately half of its original estimate, due
to efficiencies of routine and improvements in technology. The Board
welcomes comment on the estimates of actual time and costs of
collection of the United States Rail Service Issues-Performance Data
Reporting, as detailed below in Appendix. The proposed rules will be
submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5
CFR 1320.11. Comments received by the Board regarding the information
collection will also be forwarded to OMB for its review when the final
rule is published.
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\13\ In making this estimate, the Board has taken into account
the information provided by AAR. (See AAR Comments 10.)
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List of Subjects in 49 CFR Part 1250
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements.
It is ordered:
1. ACC's petition for rulemaking is granted in part and denied in
part, as discussed above.
2. 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.
3. Comments regarding the proposed rule are due by December 6,
2019. Replies are due by January 6, 2020.
4. 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.
5. This decision is effective on the day of service.
Decided: September 30, 2019.
By the Board, Board Members Begeman, Fuchs, and Oberman.
Kenyatta Clay,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend part 1250 of title 49, chapter
X, of the Code of Federal Regulations as follows:
PART 1250--RAILROAD PERFORMANCE DATA REPORTING
0
1. The authority citation for part 1250 continues to read as follows:
Authority: 49 U.S.C. 1321 and 11145.
0
2. Amend Sec. 1250.2 by revising paragraph (a)(6) to read as follows:
[[Page 53380]]
Sec. 1250.2 Railroad performance data elements.
(a) * * *
(6) The weekly average of loaded and empty cars, operating in
normal movement and billed to an origin or destination, which have not
moved in 48 hours or more, sorted by service type (intermodal, grain,
coal, crude oil, automotive, ethanol, fertilizer (the following
Standard Transportation Commodity Codes (STCCs): 2812534, 2818142,
2818146, 2818170, 2818426, 2819173, 2819454, 2819815, 2871235, 2871236,
2871238, 2871244, 2871313, 2871315, and 2871451), chemicals or allied
products (all remaining STCC 28), and all other).
* * * * *
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix
Information Collection
Title: United States Rail Service Issues--Performance Data
Reporting.
OMB Control Number: 2140-0033.
Form Number: None.
Type of Review: Revision of a currently approved collection.
Summary: As part of its continuing effort to reduce paperwork
burdens, and as required by the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3521, the Surface Transportation Board (Board) gives
notice that it is requesting from the Office of Management and
Budget (OMB) approval for the revision of the currently approved
information collection, United States Rail Service Issues-
Performance Data Reporting, OMB Control No. 2140-0033. The requested
revision to the currently approved collection is necessitated by
this notice of proposed rulemaking (NPRM), which would require
respondents to include chemical and plastics (STCC 28) traffic as a
distinct reporting category for cars-held metric at 49 CFR
1250.2(a)(6). All other information collected by the Board in the
currently approved collection is without change from its approval
(currently expiring on June 30, 2020).
Respondents: Class I railroads (on behalf of themselves and the
Chicago Transportation Coordination Office (``CTCO'')).
Number of Respondents: Seven.
Estimated Time per Response: The proposed rules seek three
related responses, as indicated in the table below.
Table--Estimated Time per Response
------------------------------------------------------------------------
Estimated time
Type of responses per response
(hours)
------------------------------------------------------------------------
Weekly.................................................. 1.5
Quarterly............................................... 1.5
On occasion............................................. 1.5
------------------------------------------------------------------------
Frequency: The frequencies of the three related collections
sought under the proposed rules are set forth in the table below.
Table--Frequency of Responses
------------------------------------------------------------------------
Frequency of
Type of responses responses
(year)
------------------------------------------------------------------------
Weekly.................................................. 52
Quarterly............................................... 4
On occasion............................................. 2
------------------------------------------------------------------------
Total Burden Hours (annually including all respondents): The
recurring burden hours are estimated to be no more than 591 hours
per year, as derived in the table below. In addition, there are some
one-time, start-up costs of approximately 45 hours for each
respondent that must be added as a one-time burden due to the
programming changes to add the additional reporting category. To
avoid inflating the estimated total annual hourly burden, the 45-
hour start-up burden has been divided by three and spread over the
three-year approval period. Thus, the total annual burden hours for
each of the three years are estimated at no more than 696 hours per
year.
Table--Total Burden Hours
[per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Frequency of
Type of responses Number of Estimated time per response responses Total yearly
respondents (year) burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Weekly....................................... 7 1.5 hours................................................ 52 546
Quarterly.................................... 7 1.5 hours................................................ 4 42
On occasion.................................. 1 1.5 hours................................................ 2 3
One-Time..................................... 7 15 hours (45 hours/3 years).............................. 1 105
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Total.................................... .............. ......................................................... .............. 696
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total ``Non-hour Burden'' Cost: There are no other costs
identified because filings are submitted electronically to the
Board.
Needs and Uses: The information collection allows the Board to
better understand current service issues and potentially to identify
and resolve possible future regional and national service
disruptions more quickly. Transparency would also benefit rail
shippers and stakeholders, by allowing them to better plan
operations and make informed business decisions based on publicly
available data, and their own analysis of performance trends over
time. As described in more detail above in the NPRM, the Board is
amending the rules that apply to this collection to add chemical and
plastics (STCC 28, except fertilizer) traffic as a distinct
reporting category. The reporting of this traffic as a stand-along
category of cars will allow the Board to monitor the fluidity of
these commodities and give chemical and plastics shippers the
ability to identify and mitigate service issues more readily. The
collection by the Board of this information, and the agency's use of
this information, enables the Board to meet its statutory duties.
[FR Doc. 2019-21627 Filed 10-4-19; 8:45 am]
BILLING CODE 4915-01-P