[Federal Register Volume 85, Number 99 (Thursday, May 21, 2020)]
[Rules and Regulations]
[Pages 30849-30851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10952]


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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: Final rule.

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SUMMARY: The Surface Transportation Board (STB or Board) is adopting a 
final rule amending its railroad performance data reporting regulations 
to include chemical and plastics traffic as a distinct reporting 
category for the ``cars-held'' metric.

DATES: This rule is effective on July 20, 2020.

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, the American Chemistry Council (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, May 6, 2019.)
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    \1\ On December 12, 2018, ACC filed an errata to its petition.
    \2\ STCC 28 is designated for ``chemicals or allied products'' 
and referred to generally by ACC as ``chemical and plastics.'' ACC 
excluded the fertilizer reporting category of STCC 28 from its 
request because fertilizer is already included in the Board's data 
reporting regulations under section 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, in its comments filed on May 6, 2019, ACC withdrew 
this part of its initial request and instead sought 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, 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 granted ACC's petition in part and proposed 
amending its regulations to include chemical and plastics (STCC 28, 
except fertilizer) traffic as a distinct reporting category for the 
cars-held metric at Sec.  1250.2(a)(6). NPRM, EP 724 (Sub-No. 5) (STB 
served Sept. 30, 2019). The Board denied ACC's petition with regard to 
its other requested amendments.
    In response to the NPRM, the Board received comments from ACC, AAR, 
the American Fuel & Petrochemical Manufacturers (AFPM), BNSF Railway 
Company (BNSF), and Canadian National Railway Company (CN). After 
consideration of the comments received, the Board will adopt as the 
final rule the NPRM proposal, with one modification. Specifically, the 
final rule modifies the proposed rule to clarify that the term 
``chemical or allied products'' encompasses all STCC 28 commodities not 
otherwise reported under ethanol or fertilizer.

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), EP 724 (Sub-No. 4) (STB served Dec. 30, 2014).\4\ 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, EP 724 (Sub-No. 4) (STB served Nov. 30, 2016), and the rule 
became effective on March 21, 2017.\5\
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    \4\ For background on 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.
    \5\ By decision served on March 13, 2017, the Board issued a 
technical correction to the final rule to add one fertilizer STCC to 
the 14 fertilizer STCCs initially included. U.S. Rail Serv. Issues--
Performance Data Reporting, EP 724 (Sub-No. 4) (STB served Mar. 13, 
2017).
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Proposed Rule

    As noted above, ACC petitioned the Board to institute a rulemaking 
proceeding to, among other things, revise Sec.  1250.2(a)(6) to include 
chemical and plastics (STCC 28, except fertilizer) traffic as a 
distinct reporting category for the cars-held metric. ACC stated 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. (Pet 1.) 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 asserted that separately reporting cars-held data for STCC 28 
traffic would enable shippers to identify regional issues affecting 
that traffic. (ACC Comments 6, May 6, 2019.) ACC argued 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 also asserted that the current data reporting 
masks the severity of service events having a disproportionate impact 
on STCC 28 traffic. (Id. at 6-7.) ACC argued that additional reporting 
would enhance shippers' ability to internally manage service issues and 
might lead to substantial cost savings. (Id. at 9.)
    AAR opposed adopting additional commodity-specific reporting, 
arguing that a narrow focus on subsets of rail traffic could 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. 
(AAR Reply 2-4, Jan. 28, 2019.) According to AAR, additional reporting 
of STCC 28 traffic as a line item in the ``cars-held for more than 48 
hours'' report would require each Class I carrier to alter the coding 
necessary to pull the data prescribed by the Board. (AAR Comments 9-10, 
May 6, 2019.) AAR objected to ``[c]ontinuous changes to the

[[Page 30850]]

Board's reporting rules,'' arguing that such changes would ``impose 
ongoing costs to railroads that would need to make programming changes 
to their systems to enable compliance.'' (AAR Reply 3, Jan. 28, 2019; 
AAR Comments 9, May 6, 2019.) AAR also noted that ACC had the 
opportunity to make this request in the past and failed to do so. (AAR 
Comments 9, May 6, 2019.)
    After considering ACC's petition and the responsive comments filed, 
the Board concluded that including STCC 28 traffic as a distinct 
reporting category for the cars-held metric at section 1250.2(a)(6) 
would be reasonable, warranted, and consistent with the rail 
transportation policy (RTP) of 49 U.S.C. 10101, and proposed a rule 
requiring such reporting. NPRM, EP 724 (Sub-No. 5), slip op. at 6.
    In response to the NPRM, both BNSF and CN comment they are not 
opposed to reporting chemical and plastics traffic as a distinct 
reporting category but note that there are two commodity groups within 
STCC 28 that are already reported in separate cars-held categories in 
Sec.  1250.2(a)(6)--fertilizer and ethanol. (CN Comments 1; BNSF Reply 
Comments 2.) CN states that the Board should make clear that the 
``chemicals or allied products'' category will not include these other 
commodities in STCC 28 that are already reported in existing categories 
of the cars-held metric to avoid a double count. (CN Comments 1.) CN 
explains that it plans to use the list of seven-digit STCCs from 
Railinc Corporation (Railinc) for STCC 28 traffic (except fertilizer 
and ethanol).\6\ (Id. at 2-3.) Similarly, BNSF states that it intends 
to comply by reporting on chemicals and plastics as the STCC 28 
categories that are not otherwise captured by the historic and ongoing 
reporting for fertilizer and ethanol. (BNSF Reply Comments 2.) In light 
of the potential overlap between ``chemical or allied products'' and 
ethanol and fertilizer, the Board will modify its proposed rule to 
clarify that the term ``chemical or allied products'' encompasses all 
STCC 28 commodities not otherwise reported under ethanol or fertilizer.
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    \6\ CN explains that its current algorithm for reporting ethanol 
and fertilizer commodities for the cars-held metric is coded at the 
seven-digit STCC level and requests that the Board confirm that a 
rail carrier may use the list of seven-digit STCCs from Railinc in 
effect when the Board's proposed rule becomes effective to comply 
with the Board's proposal that a rail carrier separately report the 
category of ``chemicals or allied products'' in the cars-held metric 
under section 1250.2(a)(6). (CN Comments 2-3.) The Board has thus 
far not prescribed the methodology by which rail carriers derive 
their data and will not do so here. See 49 CFR 1250.1(c).
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    As explained in the NPRM, pursuant to the RTP, in regulating the 
railroad industry, it is the policy of the United States Government to, 
among other things, 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). NPRM, 
EP 724 (Sub-No. 5), slip op. at 6. The final rule will 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. 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 through 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.

Other Issues

    As noted above, in issuing the NPRM, the Board concluded that ACC 
had not provided adequate justification for its proposal to extend to 
the Mississippi Gateways the terminal reporting requirements currently 
applicable to Chicago, and therefore denied ACC's request to include 
that proposal in the NPRM. NPRM, EP 724 (Sub-No. 5), slip op. at 8.
    In commenting on the NPRM, ACC asks that the Board remain open to 
requiring reporting of Mississippi Gateway data if warranted by events, 
arguing that the data would enable shippers whose cross-country traffic 
moves through the Mississippi Gateways to detect gateway congestion, 
identify uncongested gateways, and pursue routing through them. (ACC 
Comments 6-7, Dec. 6, 2019.) AFPM urges the Board to reconsider this 
decision and ``keep an open mind'' about including the Mississippi 
Gateways in the reporting requirements. (AFPM Comments 5.) AFPM states 
that the Mississippi Gateways are ``vital chokepoints'' in the national 
freight rail system and that increased petrochemical production could 
exacerbate the existing rail network capacity problems that AFPM's 
members in the Gulf Coast are already experiencing. (Id. at 5-6.)
    In response, AAR comments that ACC failed to demonstrate that its 
requested 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 Comments 2, Jan. 6, 
2020.) AAR further comments that AFPM, in urging the Board to 
reconsider its decision, has failed to address the Board's standards 
for reconsideration.\7\ (Id.)
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    \7\ BNSF and CN both state support for AAR's reply comments on 
the issue of the Mississippi Gateways. (BNSF Reply Comments 2; CN 
Reply Comments 1.)
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    The Board will not expand the scope of this rule to include 
additional terminal reporting requirements for the reasons it explained 
in the NPRM. While AFPM disagrees with the Board's decision not to 
propose including Mississippi Gateways in the reporting requirements, 
it has not provided additional justification that undermines the 
Board's reasoning in the NPRM.
    To the extent that ACC urges the Board to remain open to 
reconsidering this issue should future events warrant additional 
gateway reporting, the Board confirms that it would, as in all actions, 
consider substantially changed circumstances as a potential ground for 
reconsideration pursuant to 49 U.S.C. 1322(c).

Final Rule

    For the reasons discussed above, the Board is adopting a final 
rule, as set forth below, to amend its regulations to include chemicals 
or allied products (all STCC 28 commodities not otherwise reported 
under ethanol or fertilizer) traffic as a distinct reporting category 
for the ``cars-held'' metric at section 1250.2(a)(6).\8\
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    \8\ As noted above, the Board is modifying its proposed rule to 
clarify that the term ``chemical or allied products'' encompasses 
all STCC 28 commodities not otherwise reported under ethanol or 
fertilizer.
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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.

[[Page 30851]]

Sections 601-604. In its final rule, the agency must either include a 
final regulatory flexibility analysis, section 604(a), or certify that 
the proposed rule would not have a ``significant impact on a 
substantial number of small entities,'' section 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. v. 
Conner, 553 F.3d 467, 480 (7th Cir. 2009).
    In the NPRM, the Board certified that the proposed rule would not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the RFA.\9\ The Board explained that the 
proposed change to its regulations was intended to improve the quality 
of the service data reported by Class I carriers and would not mandate 
or circumscribe the conduct of small entities. The final rule adopted 
here is limited to Class I carriers, so the same basis for the Board's 
certification of the proposed rule in the NPRM applies to the final 
rule. Therefore, the Board certifies under 5 U.S.C. 605(b) that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the RFA. 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.
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    \9\ 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, EP 719 (STB served June 30, 
2016) (with Board Member Begeman dissenting). 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 in 1991 dollars, 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., EP 748 (STB served June 14, 2019).
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Paperwork Reduction Act

    In this proceeding, the Board is modifying an existing collection 
of information that is currently approved by the Office of Management 
at Budget (OMB) through June 30, 2020, under the collection of the 
United States Rail Service Issues-Performance Data Reporting (OMB 
Control No. 2140-0033). In the NPRM, the Board sought comments pursuant 
to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, and OMB 
regulations, 5 CFR 1320.8(d)(3), regarding: (1) Whether the collection 
of information, as modified in the proposed rule and further described 
in the NPRM,\10\ 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. No comments 
were received pertaining to the collection of this information under 
the PRA.
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    \10\ As discussed above, the Board made a minor change to the 
final rule, clarifying the term ``chemical or allied products.'' The 
change, however, does not impact the Board's analysis of the 
collection.
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    This modification to an existing collection will be submitted to 
OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 
1320.11.

Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the 
Office of Information and Regulatory Affairs has designated this rule 
as a non-major rule, as defined by 5 U.S.C.804(2).
    It is ordered:
    1. The Board adopts the final rule as set forth below. Notice of 
the final rule will be published in the Federal Register.
    2. 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.
    3. This decision is effective on July 20, 2020.

List of Subjects in 49 CFR Part 1250

    Administrative practice and procedure, Railroads, Reporting and 
recordkeeping requirements.

    Decided: May 14, 2020.

    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 amends 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 the first sentence of paragraph 
(a)(6) to read as follows:


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 STCC 28 not otherwise reported under ethanol or 
fertilizer), and all other). * * *
* * * * *
[FR Doc. 2020-10952 Filed 5-20-20; 8:45 am]
BILLING CODE 4915-01-P