[Federal Register Volume 85, Number 172 (Thursday, September 3, 2020)]
[Rules and Regulations]
[Pages 54936-54942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19195]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1244

[EP 385 (Sub-No. 8)]


Waybill Sample Reporting

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (Board) adopts a final rule 
that amends its Waybill Sample data collection regulations by 
increasing the sampling rates of certain non-intermodal carload 
shipments, specifying separate sampling strata and rates for intermodal 
shipments, and eliminating the manual system for reporting waybill 
data.

DATES: This rule is effective on January 1, 2021. Waybill reporting on 
or after the effective date must comply with the final rule.

FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368. 
Assistance for the hearing impaired is available through the Federal 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: A waybill is a ``document or instrument 
prepared from the bill of lading contract or shipper's instructions as 
to the disposition of the freight, and [is] used by the railroad(s) 
involved as the authority to move the shipment and as the basis for 
determining the freight charges and interline settlements.'' 49 CFR 
1244.1(c). Among other things, a waybill contains the following data: 
(1) The originating and terminating freight stations; (2) the railroads 
participating in the movement; (3) the points of all railroad 
interchanges; (4) the number and type of cars; (5) the car initial and 
number; (6) the movement weight in hundredweight; (7) the commodity; 
and (8) the freight revenue.
    A railroad is required to file with the Board a sample of its 
waybill data for all line-haul revenue waybills terminated on its lines 
in the United States,\1\ if the railroad: (a) Terminated at least 4,500 
revenue carloads in any of the three preceding years, or (b) terminated 
at least 5% of the revenue carloads terminating in any state in any of 
the three preceding years. 49 CFR 1244.2(a). The number of waybills 
that a railroad is required to file (i.e., the sampling rate) is set 
forth at current 49 CFR 1244.4(b) and (c), and varies based on the 
number of carloads on the waybill, as shown in Table 1 below.\2\
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    \1\ A railroad moving traffic on the U.S. rail system to the 
Canadian or Mexican border is required to ``include a representative 
sample of such international export traffic in the Waybill Sample.'' 
49 CFR 1244.3(c).
    \2\ The Board's regulations set forth different sampling rates 
for computerized and manual systems of reporting. See 49 CFR 
1244.4(b)-(c). Under the manual system, railroads submit Waybill 
Sample data through authenticated copies of a sample of audited 
revenue waybills instead of using a computerized system. Id. section 
1244.4(a). The manual system of reporting is not currently used by 
any railroads and, as discussed further below, this final rule 
eliminates it.

                 Table 1--Current Waybill Sampling Rates
                   [Computerized System of Reporting]
------------------------------------------------------------------------
                                                           Sample rate 3
             Number of carloads on waybill\
------------------------------------------------------------------------
1 to 2..................................................            1/40
3 to 15.................................................            1/12
16 to 60................................................             1/4
61 to 100...............................................             1/3
101 and over............................................             1/2
------------------------------------------------------------------------

    The Board creates an aggregate compilation of the sampled waybills 
of all reporting carriers, referred to as the Waybill Sample. First 
collected in 1946 by the Board's predecessor,\4\ the Interstate 
Commerce Commission (ICC), the Waybill Sample is the Board's principal 
source of data about freight rail shipments. It has broad application 
in, among other things, rate cases, the development of costing systems, 
productivity studies, exemption decisions, and analyses of industry 
trends. The Waybill Sample is also used by other Federal agencies, 
state and local government agencies, the transportation industry, 
shippers, research organizations, universities, and

[[Page 54937]]

others that have a need for rail shipment data. Because some of the 
submitted waybill data is commercially sensitive, the Board's 
regulations place limitations on the release and use of confidential 
Waybill Sample data. See 49 CFR 1244.9; see also 49 U.S.C. 11904.\5\
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    \3\ The column showing the sample rate indicates the fraction of 
the total number of waybills within each stratum that must be 
submitted (e.g., for waybills of one to two carloads, the railroad 
must submit one out of every 40 waybills).
    \4\ See Bureau of Transp. Econ. & Stat., Interstate Com. Comm'n, 
Statement No. 543, Waybill Statistics their History & Uses 15, 19, 
40 (1954); Waybill Analysis of Transp. of Prop.--R.Rs., 364 I.C.C. 
928, 929 (1981) (``Since 1946, the Interstate Commerce Commission 
has collected a continuous sample of carload waybills for railroads 
terminating shipments.'').
    \5\ Any grant of access to confidential Waybill Sample data 
requires the requestor to execute a confidentiality agreement before 
receiving the data. See 49 CFR 1244.9(a)-(e). In addition to the 
confidential Waybill Sample, the Board also generates a Public Use 
Waybill File that includes only non-confidential data. See 49 CFR 
1244.9(b)(5).
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Procedural Background

    As described more fully in the notice of proposed rulemaking in 
this proceeding, the Board's Rate Reform Task Force (RRTF) issued a 
report on April 25, 2019 (RRTF Report) \6\ recommending, among other 
things, that the Board change the sampling rates for its Waybill 
Sample. RRTF Report 14, 47-49; Waybill Sample Reporting (NPRM), EP 385 
(Sub-No. 8), slip op. at 2 (STB served Nov. 29, 2019). After 
considering the recommendations in the RRTF Report and the overall 
utility of the current Waybill Sample, in the NPRM issued on November 
29, 2019, the Board proposed a simplified waybill sampling rate for 
non-intermodal carload shipments and separate waybill sampling strata 
and rates for intermodal shipments, as shown in Table 2 below. See 
NPRM, EP 385 (Sub-No. 8), slip op. at 6-8; 84 FR 65768, 65770-71 (Nov. 
29, 2019).
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    \6\ The RRTF Report was posted on the Board's website on April 
29, 2019, and can be accessed at https://www.stb.gov/stb/rail/Rate_Reform_Task_Force_Report.pdf.

                Table 2--Proposed Waybill Sampling Rates
                   [Computerized System of Reporting]
------------------------------------------------------------------------
      Number of non-intermodal carloads on waybill          Sample rate
------------------------------------------------------------------------
1 to 2..................................................             1/5
3 to 15.................................................             1/5
16 to 60................................................             1/5
61 to 100...............................................             1/5
101 and over............................................             1/5
------------------------------------------------------------------------
 Number of intermodal trailer/container units on waybill    Sample rate
------------------------------------------------------------------------
1 to 2..................................................            1/40
3 and over..............................................             1/5
------------------------------------------------------------------------

    As explained in the NPRM, EP 385 (Sub-No. 8), slip op. at 4, the 
Board reasoned that a net increase in sample size would provide more 
comprehensive information to the Board and other users of Waybill 
Sample data in a variety of contexts, such as exemption decisions, 
stratification reports, traffic volume and rate studies, Board-
initiated investigations, certain rate cases, and any other waybill 
data-related analysis the Board currently performs or might seek to 
perform in the future. The Board also explained that the added number 
of observations in the Waybill Sample would likely allow it to avoid 
redacting, for confidentiality reasons, as many results from some of 
the Board's routine analysis published on its website (e.g., the 
Standard Transportation Commodity Code 7 stratification report). Id. at 
4-5. In addition, because it currently receives monthly and quarterly 
waybill data from reporting carriers, increasing the sampling rate 
would provide the Board with more observations in any given month or 
quarter from which it could draw meaningful insights throughout the 
year. Id. at 5. The Board also proposed that it should change the 
sampling requirements so that a greater portion of Waybill Sample data 
would represent regulated traffic instead of exempt traffic and stated 
that the proposed changes would help address the acknowledged 
shortcomings concerning the scarcity of data in some rate cases. Id. at 
4-5, 8. The NPRM stated that the proposed waybill sampling rates would 
increase the percentage of movement categories containing at least 25 
observations,\7\ suggesting that the proposed changes would produce 
more movement categories that have sufficient representativeness. Id. 
at 5-6, 8-10, 8 n.18.
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    \7\ According to the Central Limit Theorem, once a sample has 
sufficient observations, it is considered to be normally distributed 
and can be used to approximate the mean and variance of the 
population from which it was sampled. Generally, around 25 or 30 
observations is considered to be enough for those approximations. 
See NPRM, EP 385 (Sub-No. 8), slip op. at 5 n.10 (citing Robert V. 
Hogg et al., Probability and Statistical Inference 202 (9th ed. 
2015)).
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    The Board received seven opening comments on the NPRM from the 
following organizations: American Fuel & Petrochemical Manufacturers 
(AFPM); Association of American Railroads (AAR); CSX Transportation, 
Inc. (CSXT); National Grain and Feed Association (NGFA); RSI Logistics, 
Inc. (RSI Logistics); U.S. Department of Agriculture (USDA); and 
Western Coal Traffic League (WCTL). The Board received one reply 
comment, from AAR.

Final Rule

    After considering the comments, the Board will adopt the rule 
proposed in the NPRM, with certain modifications. Below, the Board 
addresses the comments and discusses the modifications being adopted in 
the final rule. The text of the final rule is below.

A. Sampling Rates and Strata

    The comments received generally underscore the importance of the 
Waybill Sample as a critical source of information about the rail 
industry. For example, USDA notes that the Waybill Sample ``is the most 
detailed and comprehensive data the federal government currently has on 
rail freight movements, making it instrumental in identifying trends 
and issues in the industry.'' (USDA Comment 2.) RSI Logistics similarly 
states that the Waybill Sample ``provides valuable insight into the 
rail marketplace.'' (RSI Logistics Comment 1.) Due to the Waybill 
Sample's utility, most commenters support the Board's efforts to 
increase the quantity of waybill data collected through modified 
sampling rates. (AAR Comment 1; AFPM Comment 4; CSXT Comment 1; RSI 
Logistics Comment 1; USDA Comment 2, 4.) Although some commenters 
question the potential benefits of the proposed changes, suggest 
modifications to the proposed sampling rates, or urge the Board to be 
watchful for unintended effects, (see AAR Comment 1; NGFA Comment 4-5; 
WCTL Comment 4-6), no commenter opposes the Board's effort to expand 
the quantity of waybill data collected.
    Regarding suggested modifications to the proposed rule, AAR 
cautions against the Board's proposal to reduce the data collected for 
larger, non-intermodal shipments. In particular, AAR notes that ``non-
coal larger blocks of shipments are more likely to have greater 
variance in their characteristics, including in size, frequency, and 
origin-destination pairs'' and claims that much of this detail could be 
lost as a result of the proposed reduction in the sampling rates for 
these strata. (AAR Comment 3.) AAR also states that ``there is no 
reason to suspect that shipments in the larger carload strata would be 
any less relevant to the small rate case process[,]'' which would make 
``the need for more observations [of larger shipments] . . . just as 
important as for the smaller carload strata.'' (Id.) Based on these 
concerns, AAR argues that ``[t]he Board's proposal to reduce the number 
of samples for the larger carload strata is at odds with the 
overarching goal of broadening access to relief and addressing the 
scarcity of data concerns expressed by the Board.'' (Id.) AAR therefore 
asks the Board to maintain the current sampling rates for non-
intermodal shipments with 16 or more carloads. (AAR Comment 1; AAR 
Reply 1.) CSXT likewise asks the Board to maintain the sampling rates 
for non-

[[Page 54938]]

intermodal shipments with 16 or more carloads. (CSXT Comment 1 n.1.)
    After considering the comments from AAR and CSXT, the Board 
concludes that the proposed decrease in the sampling rates for larger, 
non-intermodal shipments should not be adopted. The Board proposed 
reducing the sampling rates for non-intermodal shipments with 16 or 
more carloads per waybill to match the proposed sampling rates for non-
intermodal shipments with 15 or fewer carloads as a way of simplifying 
the sampling rates while still achieving a net increase in the non-
intermodal shipment data collected. The commenters' arguments 
concerning the variable characteristics of larger, non-coal shipments 
and the relevance of larger shipments to the small rate case process 
support the conclusion that the Waybill Sample would lose robustness 
for shipments of 16 or more carloads if the proposal were implemented. 
Although one of the goals of the Board's proposal was to simplify 
sampling rates, the Board also seeks to maintain a robust dataset that 
is of use to the agency and stakeholders. As noted in the NPRM, a 
greater number of observations would allow for additional or more 
granular factors to compare movements while maintaining 
representativeness. This applies to shipments of 16 or more carloads 
and justifies maintaining the current (more frequent) sampling rates 
for those carload shipments. Therefore, the Board will maintain the 
current sampling rates for non-intermodal shipments with 16 or more 
carloads, as suggested by AAR and CSXT.
    USDA asks the Board to consider removing the stratification process 
altogether and collecting 100% of the waybill population data, 
``postulat[ing]'' that if the ICC had possessed current technology at 
its disposal ``it would not have needed to undertake the statistical 
design process that led to the creation of today's [Waybill Sample].'' 
(USDA Comment 2.) USDA contends that collecting 100% of the waybill 
population should not be an additional burden for the railroads or the 
Board. (Id. at 2-3.) USDA argues alternatively that if 100% of the 
population data cannot be collected, the Board should ``significantly 
increase the sample size more than proposed.'' (Id. at 3.) Similarly, 
NGFA asks the Board to explore the feasibility of expanding to 100% 
data collection for non-intermodal carload traffic. (NGFA Comment 4.) 
In response, AAR raises various concerns about 100% data sampling, 
including regarding security-sensitive information and the risk of 
disclosure of confidential information. (AAR Reply 4-5.) AAR instead 
argues that the Board's proposal, as modified to maintain the non-
intermodal sampling rates for larger shipments, ``strikes a balanced 
approach to obtaining more information, while preserving customer 
anonymity.'' (Id. at 5).
    The Board will not pursue 100% waybill data collection at this 
time, although it does not foreclose the possibility of doing so in the 
future. While the arguments in favor of 100% collection may have merit, 
the Board expects the increase in the sample adopted in this final rule 
will achieve the goals of the NPRM, and the Board has not identified 
any implementation or data management issues that could delay such 
improvements. As a result, the advantages of increased sampling will be 
captured in the 2021 reporting year with sufficient time for carriers 
to adjust to the new requirements. In contrast, pursuing a 100% waybill 
collection at this stage of the rulemaking proceeding would delay 
implementing the important, incremental improvements to the waybill 
collection that will be achieved here. Further, prior to removing the 
sampling framework altogether, the Board, through notice and comment, 
would need to fully assess the utility of the collection and weigh that 
against any identified implementation or data management issues.
    As an alternative to 100% data sampling, some commenters asked the 
Board to further stratify the collected waybill data based on 
additional shipment variables, such as the railroad involved in the 
movement, the distance of the movement, the commodity transported, and 
the geographic region of the movement. (NGFA Comment 4; USDA Comment 3-
4.) Beyond shipment data, some commenters suggest collecting waybill 
data based on performance variables related to service quality, 
demurrage, and accessorial charges. (AFPM Comment 4-5; USDA Comment 4.) 
In response, AAR argues that ``these suggestions fail to recognize the 
nature and purpose of the waybill as a commercial document'' and 
``[r]equiring additional, unrelated data to be included in waybills 
would require changes to industry practice and pose significant 
challenges.'' (AAR Reply 2-3.)
    The Board will not pursue the further stratification by additional 
shipment variables or the addition of performance variables to waybill 
data collection at this time. The Board already collects certain 
performance data, albeit not on a shipment basis, pursuant to 49 CFR 
part 1250. See, e.g., Pet. for Rulemaking to Amend 49 CFR part 1250, EP 
724 (Sub-No. 5), slip op. at 3-5 (STB served May 21, 2020). Similarly, 
the Board recognizes the importance of monitoring the application of 
demurrage and accessorial rules and charges, which is why it initiated 
several related proceedings. See, e.g., Oversight Hearing on Demurrage 
& Accessorial Charges, Docket No. EP 754; Policy Statement on Demurrage 
& Accessorial Rules & Charges, Docket No. EP 757; Demurrage Billing 
Requirements, Docket No. EP 759. Because the Board has received public 
input on the proposals in the NPRM, it can implement these changes for 
the 2021 reporting year with sufficient time for carriers to adjust to 
the new regulations, whereas pursuing further stratification beyond 
what is proposed in the NPRM, or adding performance data that was not 
proposed in the NPRM, could delay improvements to the Waybill Sample 
until the 2022 reporting year. Prior to considering any possible 
further stratification or adding performance data, the Board, through 
notice and comment, would need to assess, among other things, the 
benefits of such changes against any potential technical challenges.
    Some commenters ask the Board to monitor closely the effect of 
implemented changes for any unintended consequences, (NGFA Comment 5), 
or to maintain a parallel Waybill Sample based on the current 
methodology for at least two years (WCTL Comment 5-6). In response, AAR 
states that ``[t]he Board can modify its processes to address anomalies 
or unintended consequences if they arise.'' (AAR Reply 6.) The Board 
rejects WCTL's suggestion that the Board maintain a parallel Waybill 
Sample because, compared to current regulations, the final rule's 
waybill sampling rates, which have been modified from the NPRM, are 
either greater or the same for each stratified category of non-
intermodal carload shipments and will have their expansion factors 
adjusted accordingly; as such, there is no longer any basis for concern 
that the Board's Waybill Sample would become less representative for 
certain non-intermodal carload shipments.\8\ As a

[[Page 54939]]

result, increasing the sampling rates would not affect any analyses 
that are based on a representation of the entire population of waybill 
shipments. The Board will continue to monitor the waybill dataset for 
anomalies or unintended effects, as it does in the ordinary course.
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    \8\ Under 49 CFR 1090.2, rail and highway trailer-on-flatcar/
container-on-flatcar (TOFC/COFC) service--which generally covers 
intermodal shipments--is exempt from the requirements of 49 U.S.C. 
subtitle IV, regardless of the type, affiliation, or ownership of 
the carrier performing the highway portion of the service. Although 
the final rule reduces the sampling rates for larger intermodal 
shipments, the sampling rates adopted here will still produce a 
representative sample of intermodal shipments. See NPRM, EP 385 
(Sub-No. 8), slip op. at 7 (explaining how sampling intermodal 
shipments separately would be appropriate in light of intermodal 
billing practices and would avoid over-sampling).
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    RSI Logistics suggests that the Board should require reporting by 
``holding companies'' consisting ``of multiple Class II or III 
railroads'' if their traffic volume otherwise meets the reporting 
threshold. (RSI Logistics Comment 1.) The Board declines to make this 
change. A change to the applicability provisions of 49 CFR 1244.2 is 
beyond the scope of this proceeding, which focuses on adjustments to 
the sampling rates and strata.\9\
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    \9\ RSI Logistics also requests that the Waybill Sample be 
published ``in a timelier manner'' because delay in the release of 
the data ``reduces the value of some of the information.'' (RSI 
Logistics Comment 1.) Publishing the annual Waybill Sample requires 
compiling the waybill data, analyzing it for potential issues, and 
correcting any issues identified, and is a process that cannot begin 
until the end of each calendar year. The Board will continue to 
publish the Waybill Sample as promptly as possible while ensuring 
the reliability of the published data.
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B. Waybill Record Order

    The Board's standards and format guidance for the waybill 
collection is currently found in Statement No. 81-1, Procedure for 
Sampling Waybill Records by Computer (2009 edition),\10\ and currently 
provides that submitted waybills may be listed in any order. USDA 
comments that ``[u]nder systematic sampling, order is an important 
consideration to account for patterns in the frame that may correspond 
to the skip interval,'' and suggests that the Board ``either specify an 
order, use a random ordering, or even use a simple random sample rather 
than `any order,' in order to avoid potential sampling bias.'' (USDA 
Comment 3 n.1.) The Board has no evidence suggesting that the Waybill 
Sample's unspecified sampling order has resulted in sampling bias. 
Moreover, the use of stratification is designed to reduce sampling 
bias. By sampling within certain strata, the sample is guaranteed to 
capture records of larger shipments that move less frequently. In 
addition, USDA's recommendation to use a random order is already 
addressed by using a different random start for each of the four 
subsamples within each stratum. Accordingly, the Board will not adopt 
USDA's recommendations.
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    \10\ The current edition of Statement No. 81-1 is posted on the 
Board's website and can be accessed by selecting the ``Economic 
Data'' quick link, then selecting the ``Carload Waybill Sample'' 
page link, and then selecting the ``Procedure for Sampling Waybill 
Records by Computer'' link under the ``Public Use Waybill Samples'' 
section.
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C. Manual System of Reporting

    In the NPRM, EP 385 (Sub-No. 8), slip op. at 3 n.5, the Board 
stated that ``parties may provide comments on whether the manual system 
[for reporting waybill data] should be eliminated given its current 
lack of use.'' In response, NGFA states that the Board ``should deem 
manually submitted waybills to be obsolete and rule that they no longer 
are a permissible way for carriers to submit such data.'' (NGFA Comment 
5.) No other commenter addressed this issue, and the Board notes that 
no smaller carriers commented in this proceeding. Due to its current 
lack of use and the absence of support for its continuation, the Board 
sees no need to maintain the regulatory provision for manual reporting. 
Therefore, the Board will eliminate the manual system for reporting 
waybill data in the final rule and remove references to the manual 
system at sections 1244.4, 1244.5, 1244.6, and 1244.7.

D. Effective Date

    CSXT asks the Board to provide a minimum of 90 days between the 
service date and the effective date of the final rule to give carriers 
sufficient time to make the programming changes necessary to comply 
with the revised reporting requirements. (CSXT Comment 3.) CSXT also 
requests that the Board limit, to the extent possible, revisions to 
Statement No. 81-1, and that if ``extensive procedural changes'' to 
Statement No. 81-1 are made, an additional 60 days be added to the 90 
days it requested to implement the changes proposed in the NPRM. (Id. 
at 2-3.) The Board is sensitive to the practicalities surrounding any 
revision of the waybill reporting requirements. As a result, the Board 
will require reporting under the final rule to begin on January 1, 
2021, which will give reporting carriers sufficient time to prepare for 
the revised requirements.\11\ Prior to that time (i.e., for all 2020 
waybill reportings), carriers should continue to report according to 
the current sampling requirements.
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    \11\ The Board's Office of Economics has revised Statement No. 
81-1 to account for the changes adopted in this final rule. The 
revised edition is attached as Appendix B in the served decision, 
which is available to the public on the Board's website.
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    * * *
    For the reasons discussed above, after consideration of all the 
comments received, the Board is adopting a final rule to amend its 
regulations to specify separate waybill sampling strata for intermodal 
and non-intermodal shipments and establish revised waybill sampling 
rates as shown in Table 3, below.

               Table 3--Final Rule Waybill Sampling Rates
------------------------------------------------------------------------
      Number of non-intermodal carloads on waybill          Sample rate
------------------------------------------------------------------------
1 to 2..................................................             1/5
3 to 15.................................................             1/5
16 to 60................................................             1/4
61 to 100...............................................             1/3
101 and over............................................             1/2
------------------------------------------------------------------------
 Number of intermodal trailer/container units on waybill    Sample rate
------------------------------------------------------------------------
1 to 2..................................................            1/40
3 and over..............................................             1/5
------------------------------------------------------------------------

    This rule is set out in full below and will be codified in the Code 
of Federal Regulations.
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. Section 601-604. In its 
final rule, the agency must either include a final regulatory 
flexibility analysis, section 604(a), or certify that the final 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 rule. 
White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).
    The Board certifies under 5 U.S.C. 605(b) that the final rule would 
not have a significant economic impact upon a substantial number of 
small entities, within the meaning of the RFA.\12\ Under

[[Page 54940]]

the Board's existing regulations, a railroad is required to file 
Waybill Sample data for all line-haul revenue waybills terminated on 
its lines if: (a) It terminated at least 4,500 revenue carloads in any 
of the three preceding years; or (b) it terminated at least 5% of the 
revenue carloads terminating in any state in any of the three preceding 
years. 49 CFR 1244.2. Under this criteria, 53 railroads are currently 
required to report Waybill Sample data. Of these 53 railroads, the 
Board estimates that 36 are Class III rail carriers, and therefore 
small businesses within the meaning of the RFA. Of the 53 railroads 
required to report Waybill Sample data, 45 railroads currently use 
Railinc Corporation (Railinc)--a wholly-owned information technology 
subsidiary of the Association of American Railroads--to sample their 
waybills.\13\ Eight railroads currently sample their own waybills.
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    \12\ For the purpose of RFA analysis for rail carriers subject 
to Board 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 rail 
carriers have annual operating revenues of $20 million or less in 
1991 dollars, or $40,384,263 or less when adjusted for inflation 
using 2019 data. Class II carriers have annual operating revenues of 
less than $250 million in 1991 dollars, or $504,803,294 when 
adjusted for inflation using 2019 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 10, 2020).
    \13\ Some railroads hire a third party to collect their 
waybills. That third party then sends these waybills to Railinc for 
sampling.
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    For the railroads that submit their waybills to Railinc for 
sampling, there will be no additional burden or costs as result of the 
changes adopted in the final rule. These entities will continue to 
submit all their waybills to Railinc, which will then sample the data 
in accordance with the Board's revised sampling rates. Because the 
Board contracts with Railinc to sample railroads' waybills, the 
entities that use Railinc to sample their waybills will incur no 
additional costs from Railinc as a result of the Board's proposed 
changes. Of the approximately 36 Class III rail carriers, the Board 
estimates that 34 carriers fall into this category and therefore will 
not incur any additional burden or cost.
    For the railroads that choose to sample their own waybills, the 
final rule will not result in a significant economic impact. The 
purpose of the changes adopted in the final rule is to create a more 
robust Waybill Sample and result in more comprehensive information 
critical to the Board's decision-making and analyses. The final rule 
will increase the rate at which the Board samples certain railroad 
shipments and appropriately differentiate based on industry waybill 
practices for intermodal shipments. These changes will result in 
additional observations for certain shipments but will not 
significantly alter small entities' current practices for sampling 
their shipments. Based on the total burden hours described in the 
Paperwork Reduction Act analysis below, the Board estimates that, for 
railroads conducting their own sampling, the change in reporting 
procedures will result in a one-time burden of approximately 150 hours 
per railroad. Moreover, this impact will not apply to a substantial 
number of small entities, as the Board estimates that only two of the 
approximately 36 Class III rail carriers will incur this burden.
    Accordingly, the Board certifies under 5 U.S.C. 605(b) that the 
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, Offices of 
Advocacy, U.S. Small Business Administration.
Paperwork Reduction Act
    In this proceeding, the Board is modifying an existing collection 
of information that was approved by the Office of Management and Budget 
(OMB) under the collection of Waybill Sample data (OMB Control No. 
2140-0015). In the NPRM, the Board sought comments pursuant to the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521 and OMB regulations 
at 5 CFR 1320.8(d)(3) regarding: (1) Whether the collection of 
information, as proposed below to the NPRM, 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.
    In the NPRM, the Board estimated that the proposed requirements 
would add a total one-time hourly burden of 640 hours (or approximately 
213.3 hours per year as amortized over three years) because the 
railroads, in most cases, will need to edit their software programs to 
implement these changes. The Board anticipated that, once the burden of 
the one-time programming changes is incurred, the annual burden would 
remain the same as before this modification. The Board received one 
comment from CSXT, offering its estimates for the one-time hourly 
burden of actual time and costs of collection of Waybill Sample 
data.\14\ The Board received five other comments that generally 
pertained to the Board's burden analysis under the PRA.
---------------------------------------------------------------------------

    \14\ In NPRM, Tables B-2, B-3 and B-4 show a total annual burden 
of 774.6 hours. This incorporates the annualized one-time hour 
burden of 213.3 hours under the proposed rule and the agency's most 
recent estimated annual burden of 561.3 hours for the extension 
request (due to a change in the number of carriers submitting their 
own data, there was a slight change from the annual burden of 555 
hours approved in 2017).
---------------------------------------------------------------------------

    In its comments, CSXT provides two estimates for its one-time 
hourly burden based on certain assumptions. CSXT estimates a base one-
time hourly burden of 200 hours, assuming (i) the introduction of two 
new strata, (ii) no changes to the Kth interval and random starts for 
the existing strata, and (iii) the use of existing Kth interval and 
random start tables for the two new strata. CSXT estimates an 
additional one-time hourly burden of 50 hours if new Kth intervals and 
random start tables are necessary. It also suggests that other 
procedural changes are likely to have a similarly additive effect. 
(CSXT Comment 2.)
    CSXT's estimates are helpful but CSXT's first assumption--that 
there will be two new intermodal strata--is not accurate because the 
final rule creates only one new stratum. The first intermodal stratum 
of ``1 to 2'' trailer/container units remains unchanged from the ``1 to 
2'' carloads stratum currently applied to intermodal shipments. The 
second intermodal stratum of ``3 and over'' trailer/container units is 
the only new stratum. It combines the other four carload strata 
currently applied to intermodal shipments into one stratum (i.e., ``3 
and over'' trailer/container units). Given that the number of new 
strata assumed by CSXT is reduced by half, its base estimate of 200 
one-time burden hours may also be reduced by half, to 100 one-time 
burden hours.
    CSXT's second assumption is for an additional one-time burden of 50 
hours if the Board intends to add new tables/intervals for the new 
sampling rates of the new strata. The new sampling rate of ``1/5 
waybills'' will require a new Kth interval and random starts table, 
which will use the same interval and start table, even though it will 
be applied to three different strata, (i.e., the first two carload 
strata and the second intermodal stratum). This will result in an 
additional one-time burden of 50 hours, which the Board will add to the

[[Page 54941]]

adjusted base estimate of 100 hours, for a total of 150 one-time burden 
hours.
    The other comments received, which generally pertain to the 
collection of this information, provided no data estimates or 
assumptions upon which to adjust the burdens under the PRA. These other 
comments pertain to those burdens in two ways. First, USDA and RSI 
Logistics propose general rule changes that would impact the burdens 
here. (USDA Comment 2-3; RSI Logistics Comment 1.) These comments are 
addressed above and are not adopted in this rulemaking. Second, AAR, 
AFPM, and NGFA point to the estimated total one-time hour burden (640 
hours) under the PRA set forth in the NPRM as indicating the limited 
cost of the changes in the proposed rule. (AAR Comment 4 n.4; AFPM 
Comment 4; NGFA Comment 4-5.)
    CSXT's estimates, as adjusted above, are reasonable. Therefore, the 
one-time burden for each of the eight railroads providing their own 
waybills will be increased from a total of 80 hours to 150 hours for 
each railroad providing its own waybills, as provided in the table 
below.

Table 4--Estimated Additional One-Time Hour Burden Under Final Rule for Each Railroad Providing Its Own Waybills
----------------------------------------------------------------------------------------------------------------
                                                                                 Estimated one-
                  Categories of respondents                       Number of     time hour burden  Total one-time
                                                                 respondents    (per respondent)    hour burden
----------------------------------------------------------------------------------------------------------------
Railroads that conduct their own sampling and report monthly.               5                150             750
Railroads that conduct their own sampling and report                        3                150             450
 quarterly...................................................
                                                              --------------------------------------------------
    Total One-Time Hour Burden...............................  ..............  .................           1,200
----------------------------------------------------------------------------------------------------------------

    The Board's removal of the manual filing option does not impact the 
PRA analysis because the Board has not received a manual filing in 10 
years.
    This request to modify and extend an existing, approved collection 
will be submitted to OMB for review as required under the PRA, 44 
U.S.C. 3507(d), and 5 CFR 1320.11. The request will address the 
comments discussed above as part of the PRA approval process.
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 non-major, as defined by 5 U.S.C. 804(2).
    It is ordered:
    1. The Board adopts the final rule set forth in this decision. 
Notice of the final rule will be published in the Federal Register.
    2. This decision is effective on January 1, 2021.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.

List of Subjects in 49 CFR Part 1244

    Freight, Railroads, Reporting and recordkeeping requirements.

    Decided: August 26, 2020.

    By the Board, Board Members Begeman, Fuchs, and Oberman.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board amends part 1244 of title 49, chapter X, of the 
Code of Federal Regulations as follows:

PART 1244--WAYBILL ANALYSIS OF TRANSPORTATION OF PROPERTY--
RAILROADS

0
1. The authority citation for part 1244 continues to read as follows:

    Authority: 49 U.S.C. 1321, 10707, 11144, 11145.


0
2. Revise Sec.  1244.4 to read as follows:


Sec.  1244.4   Sampling of waybills.

    (a) Reporting samples. Subject railroads shall submit waybill 
sample information as a computer file containing specified information 
from a sample waybill.
    (1) Statement No. 81-1 contains information on the standards and 
format for the computer file.
    (2) Effective January 1, 2021, and thereafter, unless otherwise 
ordered, the sampling rates are as follows:

                       Table 1 to Paragraph (a)(2)
------------------------------------------------------------------------
      Number of non-intermodal carloads on waybill          Sample rate
------------------------------------------------------------------------
1 to 2..................................................             1/5
3 to 15.................................................             1/5
16 to 60................................................             1/4
61 to 100...............................................             1/3
101 and over............................................             1/2
------------------------------------------------------------------------
 Number of intermodal trailer/container units on waybill    Sample rate
------------------------------------------------------------------------
1 to 2..................................................            1/40
3 and over..............................................             1/5
------------------------------------------------------------------------

    (b) Controls and Annual Counts. (1) Each subject railroad shall 
maintain a control procedure to ensure complete and accurate reporting 
for the waybill sampling. All pertinent waybill data shall be included 
on hard copy waybill submissions including inbound references for 
transit waybills. All such pertinent waybill data shall be legible.
    (2) All subject railroads shall maintain a record of the number of 
line-haul revenue carloads that terminated on their line in a calendar 
year and shall furnish this number when requested by the Board.
    (3) All subject railroads shall furnish the Board the control 
counts and file specification information as required by Statement No. 
81-1.
    (4) Certification by a responsible officer of the subject railroad 
as to the completeness and accuracy of sample shall be made once a year 
in accordance with the instructions on the Transmittal Form OPAD-1.


0
3. Amend Sec.  1244.5 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  1244.5   Date of filing.

    (a) The reporting period for which subject railroads submit waybill 
sample information shall be the audit (accounting) month except that 
subject railroads may submit waybill sample information quarterly as 
specified in Statement No. 81-1.
* * * * *
    (d) Subject railroads shall complete the Transmittal Form OPAD-1 to 
accompany each waybill file submission.

0
4. Revise Sec.  1244.6 to read as follows:


Sec.  1244.6   Retention of files.

    (a) Subject railroads shall retain the underlying hard copy 
waybills or facsimiles capable of producing legible copies, which shall 
be complete including inbound references for transit

[[Page 54942]]

waybills, for a minimum period of four years.
    (b) This file of retained waybills shall be maintained in such a 
manner that railroads may readily retrieve waybill copies using the 
waybill identifier code as shown on the submitted waybill record.

0
5. Amend Sec.  1244.7 by revising paragraph (a) to read as follows:


Sec.  1244.7   Special studies.

    (a) Although routine submission of hard copy waybills is not 
required, the Board may order railroads to submit hard copies of the 
underlying waybills for special studies.
* * * * *
[FR Doc. 2020-19195 Filed 9-2-20; 8:45 am]
BILLING CODE 4915-01-P