[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Pages 60466-60467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24436]



[Docket No. EP 752]

Association of American Railroads--Petition for Rulemaking

AGENCY: Surface Transportation Board.

ACTION: Solicitation of information.


SUMMARY: The Surface Transportation Board (STB or Board) seeks 
information on whether and how particular cost-benefit analysis 
approaches might be more formally integrated into its rulemaking 

DATES: Comments addressing the information requests described below 
will be due by January 17, 2020. Replies will be due by March 6, 2020.

ADDRESSES: Comments and replies may be filed with the Board either via 
e-filing or in writing addressed to: Surface Transportation Board, 
Attn: Docket No. EP 752, 395 E Street SW, Washington, DC 20423-0001. 
Comments and replies will be posted to the Board's website at 

FOR FURTHER INFORMATION CONTACT: Sarah Fancher at (202) 245-0355. 
Assistance for the hearing impaired is available through the Federal 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On March 14, 2019, the Association of 
American Railroads (AAR) filed a petition to institute a rulemaking to 
adopt procedural rules that would require a cost-benefit analysis in 
certain Board rulemaking proceedings and would set certain data 
requirements. In response to the petition, the Board received filings 
from the Competitive Enterprise Institute, the Western Coal Traffic 
League, the Joint Shippers,\1\ the National Grain and Feed Association, 
the American Forest & Paper Association, and the American Fuel & 
Petrochemical Manufacturers.

    \1\ The Joint Shippers consist of the Agricultural Retailers 
Association, American Chemistry Council, American Malting Barley 
Association, Corn Refiners Association, Freight Rail Customer 
Alliance, Industrial Minerals Association--North America, Institute 
of Scrap Recycling Industries, Louisiana Chemical Association, 
National Association of Chemical Distributors, National Industrial 
Transportation League, Private Railcar Food and Beverage 
Association, The Chlorine Institute, The Fertilizer Institute, and 
the Vinyl Institute.

    On July 10, 2019, the Board issued a decision waiving the provision 
at 49 CFR 1110.2(d), which requires the Board to rule on a petition for 
a rulemaking within 120 days of the filing of the petition. In that 
decision, the Board deferred action to allow the Board to further 
consider the issues raised in the petition.\2\ The Board continues to 
consider the practices at other agencies, including other independent 
agencies that do not have cost-benefit analysis procedural rules,\3\ 
and the Board now finds that it would be helpful to solicit additional 
information. To assist the Board's evaluation of whether and how 
particular cost-benefit analysis approaches might be more formally 
integrated into its rulemaking process, the Board seeks the following 

    \2\ AAR filed a petition for reconsideration of the Board's July 
10 decision. Because the 120-day deadline waived in the Board's 
decision passed on July 12, 2019, the petition to reconsider the 
waiver is moot. Further, with respect to the additional Board action 
AAR requests in its reconsideration petition, that request is also 
moot because, in this decision, the Board is soliciting additional 
information as specified, infra, so that it can give further 
consideration to the AAR petition to institute a rulemaking, just as 
the Board indicated it would do in its July 10 decision. The Board 
expects the responses to this solicitation will be helpful to its 
consideration of the issues, and at this time, the Board is not 
denying or granting the AAR petition to institute a rulemaking.
    \3\ Neither the Board's authorizing legislation nor the 
Administrative Procedure Act requires the Board to conduct formal 
cost-benefit analysis. See Village of Barrington, Ill. v. STB, 636 
F.3d 650, 670-71 (D.C. Cir. 2011); see also BNSF Ry. v. STB, 526 
F.3d 770, 776 (D.C. Cir. 2008).

    1. Methods. The Board requests information on specific methods--not 
just general criteria and processes in best practices guides, which the 
Board has reviewed--that would assist in the qualitative or 
quantitative analysis of a final rule by the Board. Commenters may wish 
to draw upon academic literature, other economic regulatory agencies' 
analyses, or other sources to

[[Page 60467]]

demonstrate how the Board might identify, and to the extent practicable 
quantify, specific benefits, costs, and transfer payments. The Board 
seeks specific methods directly applicable to regulatory issues within 
the Board's jurisdiction, including the economic regulation of freight 
railroads. To the extent that commenters reference studies, analyses, 
or other sources covering other types of regulation or industries, the 
Board requests that commenters describe in detail the application of 
the methods to the economic regulation of railroads. Such methods 
should account for the differences between rules that establish the 
processes under which administrative litigation takes place and other 
types of rules that prescribe a particular action or technology without 
such processes.
    2. Data. The Board seeks suggestions regarding specific data that 
the Board collects or could collect to assist with cost-benefit 
analysis. Commenters may wish to describe potential uses of the Board's 
established data collections, such as the Waybill Sample or the reports 
submitted by Class I carriers, or potential changes to those 
collections, that would help facilitate or inform cost-benefit 
analysis. Commenters may also wish to describe new or additional data 
that the Board might start to collect and analyze, and suggest 
procedures for doing so, to assist in cost-benefit analysis.
    3. Application. The Board seeks a detailed description of how cost-
benefit analysis would apply to a hypothetical rulemaking, using the 
methods and data sources identified in response to items 1 and 2 above. 
Specifically, the Board suggests that commenters consider a 
hypothetical proposed rule to modify the revenue-variable cost (R/VC) 
percentage used for purposes of market dominance from 180% to 165%. For 
purposes of this hypothetical, commenters should assume the Board has 
the authority to modify 49 U.S.C. 10707(d)(1)(A) and should not address 
the statutory constraint in their comments.\4\ To the extent 
practicable, the comments should provide a detailed example of how the 
Board would conduct a cost-benefit analysis of this hypothetical 
proposed rule utilizing appropriate methods and data sources.

    \4\ By suggesting this hypothetical proposed rule, the Board 
does not intend to convey any view on the statutory R/VC percentage, 
which the Board lacks authority to modify. The hypothetical was 
selected to provide commenters a common example with which to apply 
their views and suggestions on methods and data sources.

    4. Threshold. The Board requests information on the threshold for 
determining the rulemaking proceedings to which any cost-benefit 
analysis procedures should apply. Commenters may wish to identify 
qualitatively or quantitatively a category or categories of rules.
    Again, the Board expects to take responses to this solicitation 
into consideration in connection with its decision on AAR's petition to 
institute a rulemaking, which the Board is not denying or granting at 
this time. The requested information will be helpful to the Board's 
continued consideration of the issues raised in AAR's petition to 
institute a rulemaking. This decision is consistent with AAR's 
suggestion that the Board move forward with a ``transparent process 
that allows for relevant input from all interested stakeholders'' and 
to ``open the issue for public comment.'' (Pet. for Recons. 2-3.)
    Comments addressing the information requests described above will 
be due by January 17, 2020. Replies will be due by March 6, 2020.
    Board decisions and notices are available at www.stb.gov.
    It is ordered:
    1. Comments as described above are due by January 17, 2020.
    2. Replies are due by March 6, 2020.
    3. AAR's petition for reconsideration of the July 10 decision is 
denied as moot.
    4. This decision is effective on its date of service.

    By the Board, Board Members Begeman, Fuchs, and Oberman.

    Decided: November 4, 2019.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2019-24436 Filed 11-7-19; 8:45 am]