[Federal Register Volume 86, Number 64 (Tuesday, April 6, 2021)]
[Rules and Regulations]
[Pages 17735-17750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07000]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

49 CFR Part 1333

[Docket No. EP 759]


Demurrage Billing Requirements

AGENCY: Surface Transportation Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board (STB or Board) adopts a final 
rule that requires Class I carriers to include certain minimum 
information on or with demurrage invoices and provide machine-readable 
access to the minimum information.

DATES: This rule is effective on October 6, 2021.

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: The Board issued a notice of proposed 
rulemaking on October 7, 2019, to propose changes to its existing 
demurrage regulations to address several issues regarding carriers' 
demurrage billing practices. Demurrage Billing Requirements (NPRM), EP 
759 (STB served Oct. 7, 2019).\1\ The Board subsequently issued a 
supplemental notice on April 30, 2020, seeking comment on potential 
modifications and additions to the proposal. Demurrage Billing 
Requirements (SNPRM), EP 759 (STB served Apr. 30, 2020).\2\ Demurrage 
is subject to Board regulation under 49 U.S.C. 10702, which requires 
railroads to establish reasonable rates and transportation-related 
rules and practices, and under 49 U.S.C. 10746, which requires 
railroads to compute demurrage charges, and establish rules related to 
those charges, in a way that will fulfill the national needs related to 
freight car use and distribution and maintenance of an adequate car 
supply.\3\ Demurrage is a charge that serves principally as an 
incentive to prevent undue car detention and thereby encourage the 
efficient use of rail cars in the rail network, while also providing 
compensation to rail carriers for the expense incurred when rail cars 
are unduly detained beyond a specified period of time (i.e., ``free 
time'') for loading and unloading. See Pa. R.R. v. Kittaning Iron & 
Steel Mfg. Co., 253 U.S. 319, 323 (1920) (``The purpose of demurrage 
charges is to promote car efficiency by penalizing undue detention of 
cars.''); 49 CFR 1333.1; see also 49 CFR pt. 1201, category 106.
---------------------------------------------------------------------------

    \1\ The NPRM was published in the Federal Register, 84 FR 55109 
(Oct. 15, 2019).
    \2\ The SNPRM was published in the Federal Register, 85 FR. 
26915 (May 6, 2020).
    \3\ In Demurrage Liability, EP 707, slip op. at 15-16 (STB 
served Apr. 11, 2014), the Board clarified that private car storage 
is included in the definition of demurrage for purposes of the 
demurrage regulations established in that decision. The Board uses 
the same definition of demurrage in this decision.
---------------------------------------------------------------------------

    In the simplest demurrage case, a railroad assesses demurrage on 
the consignor (the shipper of the goods) for delays in loading cars at 
origin and on the consignee (the receiver of the goods) for delays in 
unloading cars and returning them to the rail carrier at 
destination.\4\ Demurrage, however, can also involve third-party 
intermediaries, commonly known as warehousemen or terminal operators, 
that accept freight cars for loading and unloading but have no property 
interest in the freight being transported.\5\
---------------------------------------------------------------------------

    \4\ As the Board noted in Demurrage Liability, EP 707, slip op. 
at 2 n.2, the Interstate Commerce Act, as amended by the ICC 
Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 803, 
does not define ``consignor'' or ``consignee,'' though both terms 
are commonly used in the demurrage context. Black's Law Dictionary 
defines ``consignor'' as ``[o]ne who dispatches goods to another on 
consignment,'' and ``consignee'' ``as [o]ne to whom goods are 
consigned.'' Demurrage Liability, EP 707, slip op. at 2 n.2 
(alterations in original) (citing Black's Law Dictionary 327 (8th 
ed. 2004)). The Federal Bills of Lading Act defines these terms in a 
similar manner. Id. (citing 49 U.S.C. 80101(1) & (2)).
    \5\ This decision uses ``rail users'' to broadly mean any person 
or business that sends goods by rail or receives rail cars for 
loading or unloading, regardless of whether that person has a 
property interest in the freight being transported.

---------------------------------------------------------------------------

[[Page 17736]]

    In the NPRM, the Board proposed requirements for minimum 
information to be included on or with Class I carriers' demurrage 
invoices.\6\ NPRM, EP 759, slip op. at 8-11, 14-15. In response, the 
Board received a significant number of comments from stakeholders, 
including requests for additional and modified invoicing 
requirements.\7\ The Board subsequently issued a supplemental notice of 
proposed rulemaking to invite comment on potential modifications and 
additions to the proposed minimum information requirements and format. 
The Board received comments and replies in response to the SNPRM.\8\ 
After considering the record in this proceeding, the Board adopts a 
final rule requiring Class I carriers to include certain minimum 
information on or with their demurrage invoices and provide, in the 
format of their choosing, machine-readable \9\ access to the required 
minimum information, as discussed below.
---------------------------------------------------------------------------

    \6\ In the NPRM, the Board also proposed that the serving Class 
I carrier be required to directly bill the shipper for demurrage 
(instead of the warehouseman) when the shipper and warehouseman 
agree to that arrangement and so notify the rail carrier. See NPRM, 
EP 759, slip op. at 11, 14-15. The Board subsequently adopted a 
direct-billing final rule. See Demurrage Billing Requirements, EP 
759 (STB served Apr. 30, 2020). The final rule was published in the 
Federal Register, 85 FR 26858 (May 6, 2020).
    \7\ In response to the NPRM, the Board received comments and/or 
replies from the following: American Chemistry Council (ACC); 
American Forest & Paper Association; American Fuel & Petrochemical 
Manufacturers (AFPM); American Iron and Steel Institute; American 
Short Line and Regional Railroad Association (ASLRRA); ArcelorMittal 
USA LLC (AM); Association of American Railroads; Barilla America, 
Inc.; Canadian National Railway Company (CN); Canadian Pacific 
Railway Company (CP); Corn Refiners Association (CRA); CSX 
Transportation, Inc. (CSXT); Daniel R. Elliott; Diversified CPC 
International, Inc. (CPC); Dow, Inc. (Dow); The Fertilizer Institute 
(TFI); Freight Rail Customer Alliance (FRCA); Industrial Minerals 
Association--North America; The Institute of Scrap Recycling 
Industries, Inc. (ISRI); International Association of Refrigerated 
Warehouses (IARW); International Liquid Terminals Association 
(ILTA); International Paper; International Warehouse Logistics 
Association (IWLA); The Kansas City Southern Railway Company (KCS); 
Kinder Morgan Terminals (Kinder Morgan); Lansdale Warehouse Company 
(Lansdale); National Association of Chemical Distributors (NACD); 
The Mosaic Company; National Coal Transportation Association (NCTA); 
The National Industrial Transportation League (NITL); North American 
Freight Car Association (NAFCA); Norfolk Southern Railway Company 
(NSR); Peabody Energy Corporation; The Portland Cement Association 
(PCA); Private Railcar Food and Beverage Association, Inc.; Quad, 
Inc.; Union Pacific Railroad Company (UP); Valley Distributing & 
Storage Company; Western Coal Traffic League and Seminole Electric 
Cooperative, Inc. (WCTL & SEC); and Yvette Longonje.
    \8\ In response to the SNPRM, the Board received comments and/or 
replies from the following: ACC; AFPM; ASLRRA; BNSF Railway Company 
(BNSF); CN; CP; The Chlorine Institute (TCI); CRA; CSXT; Dow; TFI; 
FRCA; ISRI; ILTA; IWLA; Lansdale; NACD; NCTA; The National Grain and 
Feed Association (NGFA); NITL; NSR; PCA; San Jose Distribution 
Services, Inc.; and UP.
    After the record closed, CN submitted a sur-reply to address 
claims that CN argued ``could give a misleading impression to CN 
customers about the circumstances in which they could incur 
demurrage.'' (CN Reply 1-2, July 27, 2020; see also Joint Reply 
(ACC, CRA, TCI, & TFI) 9, July 6, 2020.) Although a reply to a reply 
is not permitted, see 49 CFR 1104.13(c), due to the brevity and 
narrowness of CN's filing, and in the interest of a complete record, 
the Board will accept this submission as part of the record.
    \9\ As discussed below, the Board will adopt a definition for 
machine-readable data that is ``data in an open format that can be 
easily processed by computer without human intervention while 
ensuring no semantic meaning is lost.''
---------------------------------------------------------------------------

Background

    This proceeding arises, in part, as a result of the testimony and 
comments submitted in Oversight Hearing on Demurrage & Accessorial 
Charges,\10\ Docket No. EP 754. In that proceeding, parties from a 
broad range of industries raised concerns about demurrage invoicing 
practices, including issues involving the receipt of invoices 
containing insufficient information. See NPRM, EP 759, slip op. at 5-6 
(providing overview of comments received in Docket No. EP 754 related 
to the adequacy of demurrage invoices).
---------------------------------------------------------------------------

    \10\ Accessorial charges are not specifically defined by statute 
or regulation but are generally understood to include charges other 
than line-haul and demurrage charges. See Revisions to Arbitration 
Procedures, EP 730, slip op. at 7-8 (STB served Sept. 30, 2016) 
(describing a variety of charges that are considered accessorial 
charges).
---------------------------------------------------------------------------

    After carefully considering the comments and testimony in Docket 
No. EP 754, the Board issued the NPRM in this docket. As relevant here, 
the Board proposed requirements for certain minimum information to be 
included on or with Class I carriers' demurrage invoices. Specifically, 
the Board proposed the inclusion of:
     The unique identifying information (e.g., reporting marks 
and number) of each car involved;
     the following shipment information, where applicable:
    [cir] The date the waybill was created;
    [cir] the status of each car as loaded or empty;
    [cir] the commodity being shipped (if the car is loaded);
    [cir] the identity of the shipper, consignee, and/or care-of party, 
as applicable; and
    [cir] the origin station and state of the shipment;
     the dates and times of:
    [cir] Actual placement of each car;
    [cir] constructive placement of each car (if applicable and 
different from actual placement);
    [cir] notification of constructive placement to the shipper, 
consignee, or third-party intermediary (if applicable); and
    [cir] release of each car; and
     the number of credits and debits attributable to each car 
(if applicable). NPRM, EP 759, slip op. at 9-10. The Board also 
proposed to require Class I carriers, prior to sending demurrage 
invoices, to take ``appropriate action to ensure that the demurrage 
charges are accurate and warranted, consistent with the purpose of 
demurrage.'' Id. at 10 (footnote omitted). The Board proposed to add 
both the minimum information requirements and the appropriate-action 
requirement to a new regulation at 49 CFR 1333.4. Id. at 14. In the 
NPRM, the Board invited stakeholders to comment on the proposed rule, 
as well as any additional information that Class I carriers could 
reasonably provide on or with demurrage invoices to help rail users 
effectively evaluate those invoices. Id. at 10.
    In response to stakeholders' comments, the Board issued the SNPRM, 
which invited comments on modifications and additions to proposed 
section 1333.4(a) that the Board was considering. The changes proposed 
in the SNPRM would require that Class I carriers provide certain 
additional information on or with demurrage invoices, including: (1) 
The billing cycle covered by the invoice; (2) the original estimated 
date and time of arrival (ETA) of each car (as established by the 
invoicing carrier) and the date and time each car was received at 
interchange (if applicable), either on or with each invoice or, 
alternatively, upon reasonable request from the invoiced party; and (3) 
the date and time of each car ordered in (if applicable). SNPRM, EP 
759, slip op. at 4-5. In the SNPRM, the Board also asked for comment on 
a requirement that Class I carriers provide access to demurrage 
invoicing data in machine-readable format and invited further comment 
on the proposed demurrage regulations at section 1333.4(b), which would 
require Class I carriers to take appropriate action to ensure that 
demurrage charges are accurate and warranted prior to sending demurrage 
invoices.\11\ Id. at 5, 9-11.
---------------------------------------------------------------------------

    \11\ Due to changes adopted in the final rule as discussed 
below, section 1333.4(b) has been removed and proposed section 
1333.4(a) is adopted, with modifications, as section 1333.4.
---------------------------------------------------------------------------

    As discussed below, rail users express broad support for the 
minimum information proposed in the NPRM and SNPRM, although many 
suggest additions and modifications that they argue would improve the 
rule. Rail

[[Page 17737]]

users also largely support a machine-readable data requirement and the 
Board's proposal to require Class I carriers to ``take appropriate 
action to ensure that demurrage charges are accurate and warranted.'' 
Some rail users argue that the rule should apply to Class II and Class 
III carriers.
    Class I carriers oppose the proposed minimum information 
requirements but argue that, if they are adopted, carriers should be 
allowed to provide the information on their existing online platforms 
rather than on or with invoices. Class I carriers also oppose the 
Board's proposed appropriate-action requirement. ASLRRA supports the 
proposed exclusion of Class II and Class III carriers from the rule.

Final Rule

    The Board now adopts a final rule requiring Class I carriers to 
include certain minimum information on or with demurrage invoices and 
provide machine-readable access to the minimum information. The final 
rule is below.

Minimum Information Requirements

1. General Comments on Minimum Information Requirements
    Class I carriers argue generally that a rule establishing any 
minimum information requirements is unnecessary; would lead to 
increased litigation; contradicts Board precedent, the rail 
transportation policy (RTP) of 49 U.S.C. 10101, and the purpose of 
demurrage; and would restrict innovation.\12\
---------------------------------------------------------------------------

    \12\ In addition, NSR's pleading contains a vague reference to 
the Board's authority to regulate this aspect of demurrage. (NSR 
Comments 2 n.2, June 5, 2020 (``It is not clear to [NSR] that the 
Board has the authority to compel railroads to provide particular 
information related to demurrage invoices, and it is even less clear 
that the Board has the authority to compel railroads to turn over 
particular railroad records to its customers upon request by those 
customers.'').) NSR states, however, that it ``does not intend to 
formally raise such an objection at this point in this process, but 
reserves its right to do so depending on what the Board ultimately 
attempts to require in this docket.'' (Id.) Given that NSR provides 
no explanation or support for its passing assertion (and that NSR 
itself disclaims an intent to raise it), the Board need not address 
it here. In any event, the NPRM discussed the statutory authority 
for the Board's regulation of demurrage. NPRM, EP 759, slip op. at 
3.
---------------------------------------------------------------------------

    CSXT and CN argue that rail users have not shown that Class I 
carriers have a systemwide problem with demurrage invoicing sufficient 
to justify the rule. (CSXT Comments 4, Nov. 6, 2019; CN Comments 4-5, 
Nov. 6, 2019; CSXT Comments 3, June 5, 2020; CN Comments 5-6, June 5, 
2020.) CSXT, CN, UP, and KCS assert that rail users' complaints do not 
apply to them because they already provide sufficient information.\13\ 
To the extent some Class I carriers do not provide sufficient 
information, CP urges the Board to ``defer to competitive market 
pressures to provide the incentive for those railroads to innovate and 
to catch up with their peers.'' (CP Comments 5, Nov. 6, 2019.) CSXT 
suggests that any problems with carriers' invoicing systems should be 
addressed on an individualized basis through the Board's formal and 
informal complaint procedures. (CSXT Comments 4, Nov. 6, 2019.)
---------------------------------------------------------------------------

    \13\ (CN Comments 4, Nov. 6, 2019 (arguing that rail users' 
concerns have ``no application to CN, which already provides 
customers with each of the eleven categories of information 
specified by the proposed regulations''); CSXT Comments 9, Nov. 6, 
2019 (stating that complaints of inadequate documentation ``plainly 
[do] not describe the kind of documentation that CSXT provides''); 
UP Comments 2, Nov. 6, 2019 (asserting that rail users already have 
access to ``the applicable minimum data requirements''); KCS 
Comments 6, Nov. 6, 2019 (requesting exclusion from the rule, in 
part, because ``KCS already provides accurate information with few 
disputes'').)
---------------------------------------------------------------------------

    CN and CSXT also express concerns about the effect that minimum 
information requirements would have on demurrage litigation. CN argues 
that the NPRM suggests that ``invoices will not be deemed valid unless 
they include all eleven specific categories of information,'' which 
would lead to more frequent and more complex litigation. (CN Comments 
7, Nov. 6, 2019; see also CSXT Comments 4-5, June 5, 2020 (asserting 
that minimum information requirements would lead to disputes ``over 
purely technical issues'').) For example, CN suggests that an invoice 
recipient could argue that an invoice is invalid if ``a waybilling 
error by the originating shipper causes a demurrage bill to show the 
wrong commodity for a particular car'' even if the error has ``no 
material effect on the demurrage billpayer's ability to understand and 
potentially dispute demurrage for that car.'' (CN Comments 7, Nov. 6, 
2019; see also CSXT Comments 4-5, June 5, 2020 (contending that under 
the Board's proposal, ``shippers could challenge invoices on the basis 
of missing or incorrect information whether due to carrier fault or 
otherwise'').)
    Furthermore, CSXT and CN argue that minimum information 
requirements contradict Maintenance of Records Pertaining to Demurrage, 
Detention, & Other Related Accessorial Charges by Rail Common Carriers 
of Property (Maintenance of Records), 367 I.C.C. 145 (1982). (CSXT 
Comments 3, Nov. 6, 2019; CN Comments 7, Nov. 6, 2019; CN Comments 6, 
June 5, 2020.) CSXT contends that the Board's proposed rule is contrary 
to Congressional policy and ``would turn the clock back to long-
rejected policies that mandated paperwork requirements for demurrage 
bills and that prescribed inefficient nationwide practices.'' (CSXT 
Comments 3, Nov. 6, 2019; see also CN Comments 7, Nov. 6, 2019 (arguing 
that the Board should refrain from reversing ``the principle underlying 
this [Interstate Commerce Commission (ICC)] decision by adopting 
requirements for the content of demurrage invoices that would bind all 
Class I railroads'').)
    Additionally, CP and CN contend that minimum information 
requirements would contravene one of the goals of the RTP at 49 U.S.C. 
10101(2), specifically ``to minimize the need for Federal regulatory 
control over the rail transportation system.'' (CP Comments 5, Nov. 6, 
2019; CN Comments 4, June 5, 2020.) CP also argues that the proposed 
rule is inconsistent with one of the objectives of demurrage--
encouraging the efficient use of rail assets--because the proposal 
``places the emphasis on empowering customers in their ability to 
challenge invoiced demurrage charges'' after the fact instead of 
focusing Board policy on encouraging customers ``to remain actively 
engaged in monitoring and managing their supply chains to . . . avoid 
incurring demurrage charges in the first place.'' (CP Comments 4, June 
5, 2020.)
    Moreover, several carriers allege that minimum information 
requirements could stifle innovation and discourage carriers from 
exploring other methods of providing demurrage information to rail 
users.\14\ (CP Comments 5, Nov. 6, 2019; CN Comments 9-10, Nov. 6, 
2019; CSXT Comments 1-2, Nov. 6, 2019.)
---------------------------------------------------------------------------

    \14\ Class I carriers also argue that the information would be 
best provided on their online platforms rather than on or with 
invoices, and that they already provide much of the information on 
such platforms. This argument is discussed below under the 
``Alternative Visibility Platforms'' heading.
---------------------------------------------------------------------------

    CN argues that, at most, the Board should adopt a flexible, 
``performance-based'' standard that would require Class I carriers to 
``ensure that recipients of demurrage invoices have access to 
sufficient information to be able to understand the basis for the 
charges and to dispute charges believed to be unwarranted,'' which 
could be ``provided either on or with the demurrage invoice or through 
another electronic means, including through a software platform or 
portal.'' (CN Comments 14-15, June 5, 2020.) CSXT and NSR also support 
this proposal.

[[Page 17738]]

(CSXT Comments 5, June 5, 2020; NSR Reply 2, July 6, 2020.)
    In their replies, many rail users counter that they are unable to 
effectively review and understand the demurrage invoices they receive 
from Class I carriers because the carriers either provide limited 
information or do not format the information in ways that enable 
efficient access and auditing.\15\ ISRI acknowledges that minimum 
information requirements may increase costs for carriers but contends 
that rail users currently ``bear the costs and burdens associated with 
overtime and additional staffing needed to verify the accuracy of the 
invoices.'' (ISRI Reply 10-11, Dec. 6, 2019; see also WCTL & SEC Reply 
9, Dec. 6, 2019 (arguing that carriers ``have effectively shifted the 
time and costs for reviewing invoices to shippers'').)
---------------------------------------------------------------------------

    \15\ (See, e.g., Dow Reply 1, 3-6, Dec. 6, 2019; Joint Reply 
(ACC, CRA, TFI, & NITL) 5-6, Dec. 6, 2019; Kinder Morgan Reply 9, 
Dec. 6, 2019; WCTL & SEC Reply 5, Dec. 6, 2019; ISRI Reply 10, Dec. 
6, 2019; NGFA Reply 5-6, July 6, 2020; see also Dow Comments 3, Nov. 
6, 2019; IARW Comments 2, Nov. 6, 2019.)
---------------------------------------------------------------------------

    With respect to Class I carriers' concerns about increased 
litigation over technical issues, joint commenters (ACC, CRA, TCI, and 
TFI) \16\ assert that rail users will not be inclined to dispute 
appropriate demurrage charges over technical issues since demurrage 
disputes are costly. (Joint Reply (ACC, CRA, TCI, & TFI) 13, July 6, 
2020.) In addition, Dow argues that to the extent Class I carriers face 
more demurrage claims, those claims are likely to be valid for charges 
that previously went undetected. (Dow Reply 5, July 6, 2020.)
---------------------------------------------------------------------------

    \16\ The Board received two sets of joint comments in this 
proceeding. The first group, composed of ACC, CRA, TFI, and NITL, 
filed reply comments on December 6, 2019. The second group, composed 
of ACC, CRA, TCI, and TFI, filed comments on June 5, 2020, and reply 
comments on July 6, 2020.
---------------------------------------------------------------------------

    Several rail users counter CSXT's and CN's argument that minimum 
information requirements would constitute a return to the ICC's former 
demurrage rules by arguing, among other things, that unlike the former 
ICC rules, the Board's proposal would have little, if any, impact on 
the day-to-day operations of railroads because it would not impose 
timing requirements, content-organization requirements, or 
recordkeeping or notification methods. (Joint Reply (ACC, CRA, TFI, & 
NITL) 7-8, Dec. 6, 2019; see also ISRI Reply 12-13, Dec. 6, 2019 
(arguing that the Board's proposal is less stringent than the rules the 
ICC removed); AM Reply 4, Dec. 6, 2019 (asserting that the minimum 
information requirements ``would not be `re-regulatory' '').)
    Additionally, joint commenters (ACC, CRA, TCI, and TFI) and Dow 
dismiss CP's argument that minimum information requirements would 
discourage rail users from taking steps to avoid demurrage charges, 
asserting that rail users would not choose to incur the time and 
expense of challenging demurrage charges over preventing them in the 
first place. (Joint Reply (ACC, CRA, TCI, & TFI) 7, July 6, 2020; Dow 
Reply 5, July 6, 2020.) Joint commenters (ACC, CRA, TCI, and TFI) and 
NGFA strongly object to carriers' calls for an alternative performance-
based standard because they argue it would allow carriers to 
exclusively determine the information rail users need to assess the 
validity of demurrage charges and permit carriers to present the 
information in formats that would limit rail users' ability to use the 
information to verify demurrage charges. (Joint Reply (ACC, CRA, TCI, & 
TFI) 14-15, July 6, 2020; NGFA Reply 12, July 6, 2020.)
    The Board finds ample support in the record for adoption of minimum 
information requirements for demurrage invoices. The Board received 
many comments in this proceeding \17\ and in Oversight Hearing on 
Demurrage & Accessorial Charges, Docket No. EP 754,\18\ from rail users 
asserting that carriers either do not provide sufficient information or 
do not present the information in a format that allows rail users to 
effectively verify demurrage charges. The Board is particularly 
concerned about rail users' assertions that even with significant time 
and resources devoted to reviewing demurrage invoices, they find 
erroneous charges overly difficult to detect under carriers' present 
invoicing practices. (See Dow Reply 2-3, Dec. 6, 2019; Joint Reply 
(ACC, CRA, TFI, & NITL) 5-6, Dec. 6, 2019; ISRI Reply 10-11, Dec. 6, 
2019.) While it may be true that certain Class I carriers provide more 
information, or more accessible information, than others, the Board 
finds that the comments from a diverse array of shippers served by 
different carriers demonstrate a widespread issue that justifies the 
imposition of a uniform set of minimum requirements for all Class I 
carriers. Because CN's proposed flexible ``performance-based'' 
alternative standard lacks objective criteria, Class I carriers would 
be responsible for determining the amount of information sufficient for 
demurrage invoices in a manner that would likely continue to result in 
varied practices, some of which may not provide rail users with 
information sufficient for them to readily assess the validity of 
demurrage charges. Likewise, CP's argument that market pressure will 
encourage carriers to provide better information on demurrage invoices 
is also unpersuasive because, if the argument were correct, demurrage 
invoices would already be more complete and informative than they are, 
and this proceeding would not have been necessary in the first 
place.\19\
---------------------------------------------------------------------------

    \17\ (See, e.g., Dow Comments 3, Nov. 6, 2019; IARW Comments 2, 
Nov. 6, 2019; Dow Reply 1, 3-6, Dec. 6, 2019; Joint Reply (ACC, CRA, 
TFI, & NITL) 5-6, Dec. 6, 2019; Kinder Morgan Reply 9, Dec. 6, 2019; 
WCTL & SEC Reply 5, Dec. 6, 2019; ISRI Reply 10, Dec. 6, 2019; NGFA 
Reply 5-6, July 6, 2020.)
    \18\ See NPRM, EP 759, slip op. at 5-6 (providing overview of 
comments received in Docket No. EP 754 related to the adequacy of 
demurrage invoices).
    \19\ Similarly, the existing case-by-case formal and informal 
adjudicatory approach has not ensured that rail users generally have 
easy access to the kind of information needed to readily assess 
Class I carrier demurrage charges. Rather, the record establishes 
that access to information varies a great deal depending on each 
carrier's program and practices. (See PCA Comments 2, June 5, 2020; 
Dow Reply 3-6, Dec. 6, 2019; NGFA Reply 4, July 6, 2020.)
---------------------------------------------------------------------------

    Regarding CN's and CSXT's concern that minimum information 
requirements will lead to increased demurrage litigation because rail 
users will challenge invoices based upon technical issues unrelated to 
the validity of demurrage charges, the Board clarifies here that a 
carrier's failure to comply with the minimum information requirements 
on a particular invoice does not, by itself, establish that the invoice 
is invalid. Rather, the Board intends for the final rule to reduce 
unnecessary litigation by providing rail users with information that 
enables them to readily assess the validity of demurrage charges and 
determine when to dispute or accept responsibly for them. Indeed, rail 
users describe demurrage litigation as a complicated and time-consuming 
process that they would prefer not to undertake. The Board understands 
that carriers may make occasional invoicing errors and does not expect 
that an error would conclusively invalidate an entire demurrage 
invoice. The question of whether specific demurrage charges are lawful 
depends on an array of fact-specific factors (including, for example, 
documentation supporting the charges) that would need to be determined 
in the context of an individual dispute. Nevertheless, the Board has 
made clear that transparency and mutual accountability in the billing 
process are ``important factors'' in the establishment of reasonable 
demurrage charges. Pol'y Statement on Demurrage & Accessorial Rules & 
Charges (Pol'y Statement), EP

[[Page 17739]]

757, slip op. at 15 (STB served Apr. 30, 2020). Although a carrier's 
failure to comply with the minimum invoicing requirements to be set 
forth at section 1333.4 would not be conclusive in litigation regarding 
a particular demurrage invoice, such noncompliance should be taken into 
account under 49 U.S.C. 10702 and 10746, along with all other relevant 
evidence, in determining the reasonableness and enforceability of 
demurrage charges.\20\
---------------------------------------------------------------------------

    \20\ Noncompliance could also be the subject of complaints and/
or investigation under 49 U.S.C. 11701 and 11704, and the nature of 
the invoicing error would likely be a consideration in any such 
proceeding (e.g., a one-time inaccuracy in the date that a waybill 
was created is not the same as general noncompliance or frequent or 
systemic errors).
---------------------------------------------------------------------------

    Contrary to carriers' arguments, the final rule does not contradict 
Board precedent, the RTP, or the purpose of demurrage. First, the ICC's 
decision in Maintenance of Records, 367 I.C.C. 145 (1982), cited by 
CSXT and CN, does not prevent the Board from adopting minimum 
information requirements here. As an initial matter, the Board may 
modify its rules as long as its actions are rational and fully 
explained.\21\ Maintenance of Records itself was a modification based 
largely on changes in carrier practices due to technological advances. 
There, the ICC determined that certain recordkeeping requirements, such 
as those requiring carriers to maintain separate records for each open 
station, prepare daily car reports, and forward the reports daily to 
recordkeeping offices were unnecessary because computers could retain 
the data at a central location in a comparably efficient and less 
expensive way. Maintenance of Records, 367 I.C.C. at 146. As one rail 
user points out, however, present rail industry practices and 
technology are very different than they were when the ICC decided 
Maintenance of Records in 1982. (ISRI Reply 11-12, Dec. 6, 2019.) 
Moreover, as the Board observed, carriers use the minimum information 
in the ordinary course of business today and some carriers already 
provide certain demurrage information to rail users on online 
platforms. See NPRM, EP 759, slip op. at 10; SNPRM, EP 759, slip op. at 
4. Unlike the more prescriptive rules that predated Maintenance of 
Records, the Board's final rule in this proceeding gives Class I 
carriers the flexibility to invoice in the format of their choosing, 
including electronic options, so long as they include the minimum 
information requirements on or with the invoices and provide machine-
readable access to the minimum information. Accordingly, the final rule 
does not, as CSXT argues, ``turn the clock back to long-rejected 
policies.'' (CSXT Comments 3, Nov. 6, 2019.)
---------------------------------------------------------------------------

    \21\ See Nat'l Cable & Telecommc'ns Ass'n v. Brand X Internet 
Servs., 545 U.S. 967, 981-82, 1001 (2005) (finding that an agency 
``is free within the limits of reasoned interpretation to change 
course if it adequately justifies the change''); Chevron, U.S.A., 
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (``An 
initial agency interpretation is not instantly carved in stone.'').
---------------------------------------------------------------------------

    The Board also finds that the final rule adopted here is consistent 
with the provision of the RTP at section 10101(2), which focuses on 
minimizing the need for Federal regulatory control and ensuring 
expeditious Board decisions when required. The record in this 
proceeding and in Oversight Hearing on Demurrage & Accessorial Charges, 
Docket No. EP 754, supports the conclusion that limited and focused 
regulation would help parties resolve future demurrage disputes more 
efficiently and effectively without the need for costly and time-
consuming litigation. Additionally, to the extent that parties may need 
to litigate demurrage disputes in the future, the minimum information 
requirements adopted here will facilitate expeditious handling and 
resolution of those disputes, consistent with section 10101(2), (15). 
Furthermore, by ensuring that rail users have access to sufficient 
information to understand demurrage charges, the final rule serves 
important goals of the RTP to meet the needs of the public and for 
carriers to remain competitive with other transportation modes. See 
section 10101(4).
    The Board rejects CP's argument that the rule contradicts the 
purpose of demurrage because it encourages rail users to challenge 
demurrage invoices rather than avoid demurrage charges in the first 
instance. The final rule incentivizes efficient asset utilization (and 
helps to ensure that carriers are compensated when rail cars are unduly 
detained) by requiring demurrage invoices to contain sufficient 
information to allow rail users to verify the validity of those charges 
and modify their own behavior when necessary to avoid future demurrage 
charges. See NPRM, EP 759, slip op. at 10; SNPRM, EP 759, slip op. at 
7. The final rule does not encourage rail users to challenge 
appropriately assessed demurrage charges. Rather, it ensures that rail 
users are provided sufficient information about the charges to enable 
them to take action to avoid future charges and, indeed, rail users 
have confirmed that incurring the time and expense of demurrage 
litigation, rather than avoiding the charges in the first place, would 
not serve their interests. (See Joint Reply (ACC, CRA, TCI, & TFI) 7, 
July 6, 2020; Dow Reply 5, July 6, 2020.)
    Lastly, the Board is not persuaded by the argument that minimum 
information requirements will stifle innovation. To the contrary, the 
final rule allows Class I carriers to choose how to invoice rail users, 
as long as they include the minimum information required on or with the 
invoices and provide machine-readable access to the minimum 
information.\22\
---------------------------------------------------------------------------

    \22\ The Board notes that the information requirements adopted 
here are minimum, not maximum, requirements. To the extent that 
Class I carriers, responding to the competitive market pressures 
suggested by CP or for other reasons, wish to provide rail users 
with information not specified in the minimum information 
requirements in the format of their choosing, the Board encourages 
them to do so.
---------------------------------------------------------------------------

    Therefore, as discussed below, the Board will adopt the minimum 
information requirements proposed in the NPRM and the SNPRM.
2. NPRM Proposed Information
    Rail users generally support the minimum information requirements 
proposed in the NPRM, asserting that the information would help rail 
users audit invoices more effectively and learn what actions to take to 
avoid future demurrage charges. (See, e.g., TFI Comments 3-4, Nov. 6, 
2019; NACD Comments 2-3, Nov. 6, 2019; NITL Comments 9, Nov. 6, 2019.) 
Additionally, two rail users submit requests for clarification. First, 
ISRI asks the Board to clarify its proposal that Class I carriers be 
required to provide ``[t]he number of credits and debits attributable 
to each car (if applicable).'' (ISRI Comments 4-5, June 5, 2020.) 
Specifically, ISRI asks whether this proposal would require carriers to 
``determine in advance for each car included in an invoice whether 
credits apply'' or whether rail users would need to apply for credits 
that would appear on future invoices, if granted. (Id. at 5.) ISRI 
requests that, if the Board did not intend to require the former, then 
the Board mandate that credits be carried over for 30 to 60 days before 
expiring. (Id.) Second, ILTA asks the Board to change the ``and/or'' 
language in the requirement that Class I carriers provide ``the 
identity of the shipper, consignee, and/or care-of party, as 
applicable'' to ``and'' so that Class I carriers are required to 
identify all applicable parties. (ILTA Comments 4, June 4, 2020.) Class 
I carriers do not respond to ISRI's or ILTA's requests for 
clarification.
    Several Class I carriers state that they already provide rail users 
with most (or all) of the information proposed in the NPRM, either on 
invoices or their online

[[Page 17740]]

platforms.\23\ However, KCS and CN express concerns that handling 
carriers may not always receive complete waybill information from 
connecting carriers and, therefore, may not have access to the date the 
waybill was created; the identity of the shipper, consignee, and/or 
care-of party, as applicable (if not the invoiced party); and the 
origin station and state of the shipment. (KCS Comments 5, Nov. 6, 
2019; CN Comments 7-8, June 5, 2020.) KCS states that it is ``willing 
to work with other carriers to try to obtain this information on a 
regular basis in the future, but currently does not always have all of 
the information the Board's rules would require.'' (KCS Comments 5, 
Nov. 6, 2019.) CN asks the Board to specify that ``a railroad is only 
required to provide information that is available to it.'' (CN Comments 
7, June 5, 2020.)
---------------------------------------------------------------------------

    \23\ (See KCS Comments 5, Nov. 6, 2019; CSXT Comments 5, Nov. 6, 
2019; UP Comments 2, Nov. 6, 2019; CP Comments, V.S. Melo 2, Nov. 6, 
2019; CN Comments 4, Nov. 6, 2019; NSR Reply 1, Dec. 6, 2019; see 
also NSR Comments 1, Nov. 6, 2019 (stating that it does not oppose 
the specific categories of information that the Board proposed in 
the NPRM).)
---------------------------------------------------------------------------

    NGFA objects to CN's proposal. NGFA argues that the proposal would 
create an incentive for carriers to avoid collecting information needed 
by rail users so that they would not have to provide the information on 
demurrage invoices. (NGFA Reply 13, July 6, 2020.)
    The Board finds that adopting the minimum information requirements 
proposed in the NPRM will ensure that rail users have access to 
information that will help them readily assess the validity of 
demurrage charges, properly allocate demurrage responsibility, and 
modify their own behavior, as appropriate, to minimize future demurrage 
charges. Such actions will help provide for the efficient use of rail 
assets, consistent with section 10746. Accordingly, the Board will 
adopt the minimum information requirements proposed in the NPRM with 
the following clarifications.
    To address ISRI's concern that the Board's proposal would require 
rail users to apply for credits, the Board clarifies that the final 
rule does not create an obligation for rail users to apply for credits. 
Rather, the Board intends that Class I carriers will list the number of 
credits and debits attributable to each car on the invoice (if 
applicable).\24\ Furthermore, the Board declines ILTA's request to 
change the ``and/or'' language in the requirement that Class I carriers 
provide ``the identity of the shipper, consignee, and/or care-of party, 
as applicable'' because the ``as applicable'' language already conveys 
that Class I carriers should identify all applicable parties on the 
invoice.
---------------------------------------------------------------------------

    \24\ The Board also clarifies that the final rule does not 
prevent rail users from seeking additional credits that were not 
discernable at the time the invoice was issued.
---------------------------------------------------------------------------

    In response to KCS's and CN's concerns about access to select 
waybill information, the Board clarifies that Class I carriers are not 
required to provide rail users with information to which the Class I 
carriers do not have access in the normal course of business from their 
partner carriers. Although CN and KCS do not quantify the degree to 
which they may lack information from other rail carriers in a movement, 
the Board would not expect this situation to occur frequently because 
Class I carriers have many reasons for collecting the minimum 
information required by the final rule, including for their own 
performance metrics and to substantiate demurrage charges should they 
be challenged, and carriers share information in the ordinary course of 
business during interchange. Where a carrier cannot provide information 
required by the rule because it has not received the information from 
another carrier, the invoicing carrier should make a note to that 
effect on the invoice. In response to NGFA's concern, the Board 
observes that it expects that this situation would arise infrequently, 
and the Board will consider further regulatory action if the situation 
is becoming widespread.
3. Billing Cycle
    In the SNPRM, the Board invited comment on a proposal to require 
Class I carriers to include on or with demurrage invoices the billing 
cycle covered by the invoice. SNPRM, EP 759, slip op. at 5. Many rail 
users support the inclusion of the billing cycle, asserting that it 
would make invoices easier to understand and validate.\25\ Dow argues 
that this information would be particularly useful when demurrage 
events span more than one invoicing period because some carriers bill 
demurrage monthly by the date it accrues rather than by the date the 
demurrage event ends. (Dow Comments 2, June 5, 2020.) Dow also contends 
that billing cycle information would simplify research into invoice 
events because many of the carriers' online platforms make demurrage 
event data available only by billing cycle. (Id.)
---------------------------------------------------------------------------

    \25\ (See ILTA Comments 2, June 4, 2020; AFPM Comments 5, June 
5, 2020; IWLA Comments 2; June 5, 2020; Joint Comments (ACC, CRA, 
TCI, & TFI) 2, June 5, 2020; NACD Comments 3, June 5, 2020; NITL 
Comments 3, June 5, 2020; PCA Comments 2, June 5, 2020; FRCA 
Comments 1, June 5, 2020; ISRI Comments 3, June 5, 2020.)
---------------------------------------------------------------------------

    CN opposes this requirement, arguing that there is no basis in the 
record for it. (CN Comments 10, June 5, 2020.) NSR does not object, but 
requests additional clarity about whether its current process for 
providing billing cycle information \26\ would satisfy the Board's 
proposed requirement. (NSR Comments 7, June 5, 2020.) In addition, UP, 
CN, CSXT, and BNSF state that they currently provide billing cycle 
information on their invoices or online platforms. (UP Comments, V.S. 
Prauner 2, June 5, 2020; CN Comments 10, June 5, 2020; CSXT Comments 3, 
June 5, 2020; BNSF Comments 2-3, June 5, 2020.)
---------------------------------------------------------------------------

    \26\ NSR states that ``[e]ach invoice indicates the time period 
during which the car incurred demurrage charges. If a railcar incurs 
charges over multiple months, the customer will be charged when the 
demurrage cycle has ended. The railcar is summarized on a monthly 
invoice with other equipment during the billing period. That single 
invoice will reflect the billing cycle for that month. Additionally, 
the customer will receive information showing the full range of 
dates where that particular car incurred charges.'' (NSR Comments 7, 
June 5, 2020.)
---------------------------------------------------------------------------

    The Board will include a billing cycle requirement in the final 
rule. The billing cycle information, which is a basic feature on 
recurring invoices, would help rail users verify demurrage charges that 
span multiple invoicing periods and compare invoiced charges to the 
demurrage information available on Class I carriers' online platforms. 
(Dow Comments 2, June 5, 2020.) Although CN opposes the addition, the 
record establishes that such information would assist rail users in 
better understanding their invoices; most carriers indicate that they 
already provide this basic information; and no carriers indicate that 
this requirement would be burdensome. In response to NSR's request, the 
Board clarifies here that providing rail users with the dates of the 
invoicing period over which rail cars incurred demurrage would be 
sufficient to satisfy the billing cycle requirement.
4. Original ETA and Interchange Date and Time
    As discussed in the SNPRM, several commenters identified the 
original ETA and, if applicable, the date and time that cars are 
received at interchange, as information that would give rail users 
greater visibility into how carrier-caused bunching \27\ and other 
delays may affect demurrage charges. See SNPRM, EP 759, slip op. at 5-8 
(describing comments received in response to the NPRM related to the 
original ETA and the date

[[Page 17741]]

and time that cars are received at interchange). In response, the Board 
invited additional comment on revisions to proposed section 1333.4 that 
would require Class I carriers to provide on or with their demurrage 
invoices (1) the original ETA of each car (as established by the 
invoicing carrier); and (2) the date and time that each car was 
received at interchange, if applicable. Id. For the former, the Board 
invited comment on how to define ``original ETA,'' \28\ and whether the 
original ETA may differ depending on whether the rail car is loaded or 
empty. Id. at 7 n.12. For the latter, the Board invited comment on 
whether the requirement that Class I carriers provide the date and time 
that cars are received at interchange, if applicable, should be limited 
to the last interchange with the invoicing carrier. Id. at 7. Lastly, 
the Board invited comment on whether Class I carriers should be 
required to provide these items to the invoiced party upon reasonable 
request (rather than on or with every invoice) and, if so, what would 
constitute a reasonable request. Id. at 7-8.
---------------------------------------------------------------------------

    \27\ The Board has described bunching as ``rail car deliveries 
that are not reasonably timed or spaced.'' See Demurrage Liability, 
EP 707, slip op. at 23.
    \28\ The Board sought comment on whether, for example, original 
ETA should be generated promptly following interchange or release of 
shipment to the invoicing carrier and be based on the first movement 
of the invoicing carrier. SNPRM, EP 759, slip op. at 7 n.12.
---------------------------------------------------------------------------

    Original ETA. In response to the SNPRM, rail users express 
additional support for an original ETA requirement. Several rail users 
contend that by comparing the original ETA to the car's arrival time, 
rail users will be better able to identify carrier-caused bunching, 
verify credits when applicable, and know when to dispute demurrage 
charges.\29\ AFPM also contends that this requirement would encourage 
carriers to apply increased scrutiny to their demurrage invoices before 
sending them. (AFPM Comments 6, June 5, 2020.) Although several rail 
users acknowledge that they would need to consider other facts and 
circumstances besides the original ETA to determine whether demurrage 
charges arise from carrier-caused bunching, they argue that the 
original ETA would help them determine when to conduct further 
inquiries with the carriers. (Dow Reply 3-4, July 6, 2020; Joint Reply 
(ACC, CRA, TCI, & TFI) 3-4, July 6, 2020; NITL Reply 6, July 6, 2020.) 
Dow and joint commenters (ACC, CRA, TCI, and TFI) argue that the 
original ETA and date and time of interchange are the only metrics that 
allow rail users to identify demurrage charges that may arise from 
carrier-caused bunching and other delays beyond rail users' reasonable 
control. (Dow Reply 1, July 6, 2020; Joint Reply (ACC, CRA, TCI, & TFI) 
3, July 6, 2020.) Additionally, Dow contends that the original ETA 
would help inform transit variability so that rail users can ``fine 
tune [their] shipments and the number of cars at a destination to 
better prevent demurrage.'' (Dow Reply 4, July 6, 2020.)
---------------------------------------------------------------------------

    \29\ (See ILTA Comments 2, June 4, 2020; AFPM Comments 6, June 
5, 2020; FRCA Comments 1, June 5, 2020; ISRI Comments 4, June 5, 
2020; IWLA Comments 2, June 5, 2020; NACD Comments 4, June 5, 2020; 
NITL Comments 3-4; June 5, 2020; PCA Comments 2, June 5, 2020; Dow 
Reply 3, July 6, 2020; NGFA Reply 10, July 6, 2020.)
---------------------------------------------------------------------------

    BNSF, CP, CN, UP, NSR, and CSXT oppose an original ETA requirement, 
although they state that they already provide rail users with ETA 
information.\30\ BNSF, CN, and UP argue that ETAs are most useful when 
they are consistently updated with current information to account for 
the variability of traffic movements across the rail network. (BNSF 
Comments 16, June 5, 2020; CN Comments 8-9, June 5, 2020; UP Comments, 
V.S. Prauner 2, June 5, 2020.) BNSF asserts that rail users may ``keep 
a historical record of the original ETA and any updates as a car moves 
across the network, but that original ETA is not meaningful to the 
customer in its demurrage planning'' because ``actual events'' are more 
important than ``historical estimates.'' (BNSF Comments 16-17, June 5, 
2020.)
---------------------------------------------------------------------------

    \30\ (See BNSF Comments 16-17, June 5, 2020; NSR Comments 7, 
June 5, 2020; UP Comments 4, June 5, 2020; CP Comments 5, June 5, 
2020; CSXT Comments 3, June 5, 2020; CN Reply 5, July 6, 2020.)
---------------------------------------------------------------------------

    BNSF and UP also contend that original ETAs do not give rail users 
meaningful information about the causes of demurrage.\31\ CN asserts 
that the relevant data for bunching is not the original ETA but rather 
``the actual arrival time of shipments, and whether the arrival times 
for all of a receiver's inbound traffic are clustered in a way that it 
could prevent the receiver from loading or unloading the cars without 
incurring demurrage.'' (CN Comments 9, June 5, 2020.) UP also argues 
that ``[t]he only way to identify whether and why bunching occurred is 
through the railroad and customer working cooperatively.'' (UP Comments 
4, June 5, 2020.)
---------------------------------------------------------------------------

    \31\ (BNSF Comments 16-17, June 5, 2020 (arguing that 
``[i]nnumerable circumstances could cause changes to the original 
ETA of a particular movement, including industry behavior at origin 
or destination (if cars must be held en route)''); UP Comments 4, 
June 5, 2020 (noting that rail cars could miss their estimated ETAs 
``because a surplus of cars ordered by the customer caused 
congestion in a yard or multiple shippers sent cars to the same 
receiver facility and that facility's capacity was exceeded'').)
---------------------------------------------------------------------------

    Additionally, Class I carriers assert that an original ETA 
requirement would create confusion about carriers' service obligations. 
CP and UP emphasize that that they do not guarantee specific transit 
times. (CP Comments 5, June 5, 2020; UP Comments 4, June 5, 2020.) 
Likewise, NSR and BNSF argue that a carrier's common carrier obligation 
does not require them to adhere to ETAs. (NSR Comments 7-8, June 5, 
2020; BNSF Reply 2-3, July 6, 2020.) BNSF also contends that the Board 
has recognized in demurrage cases that ``transit delays inherent in 
rail operations do not, on their own, excuse a shipper from 
demurrage.'' (BNSF Reply 3-4, July 6, 2020.) Furthermore, CN argues 
that the Board's proposal could have unintended consequences, such as 
disrupting private service agreements between carriers and rail users 
by suggesting that ``failure to deliver by an original ETA could be 
indicative of service failure'' and incentivizing carriers to include a 
``sizeable cushion'' rather than the most accurate ETA forecasts to 
avoid potential demurrage challenges. (CN Comments 9-10, June 5, 2020; 
see also BNSF Reply 5, July 6, 2020 (asserting that carriers may change 
the way they estimate ETAs to avoid litigation with rail users).)
    Rail users respond by arguing that an original ETA requirement 
would not cause the outcomes that carriers describe. Several rail users 
contend that an original ETA requirement would not create transit-time 
guarantees since rail users know, via carriers' contracts and tariffs, 
that carriers do not guarantee transit times. (Dow Reply 4, July 6, 
2020; ISRI Reply 4, July 6, 2020; Joint Reply (ACC, CRA, TCI, & TFI) 7, 
July 6, 2020; NITL Reply 5, July 6, 2020.) Dow and joint commenters 
(ACC, CRA, TCI, and TFI) suggest that the Board could clarify in the 
final rule that the original ETA is required for demurrage purposes 
only and not to create a transit-time guarantee. (Dow Reply 4-5, July 
6, 2020; Joint Reply (ACC, CRA, TCI, & TFI) 7, July 6, 2020.) However, 
joint commenters (ACC, CRA, TCI, and TFI) also argue that ``[i]f the 
railroad caused the shipment to arrive late, even by a day, it should 
not be entitled to penalize the rail user with demurrage.'' (Joint 
Reply (ACC, CRA, TCI, & TFI) 7, July 6, 2020.)
    Dow and joint commenters (ACC, CRA, TCI, and TFI) further argue 
that, for private cars, original ETA should be defined as ``the 
estimated date and time of constructive placement as determined by the 
delivering carrier immediately upon proper release of a car by the 
shipper to the rail carrier (for single-line

[[Page 17742]]

movements) or the carrier's receipt of a car in interchange (for joint-
line movements)'' as ``determined under applicable AAR interchange 
rules.'' (Dow Comments 3, June 5, 2020; see also Joint Comments (ACC, 
CRA, TCI, & TFI) 4, June 5, 2020 (proposing a similar definition).) 
They contend that an original ETA must be estimated immediately upon 
the delivering carrier receiving control of the car because carrier-
caused delays can occur at origins and interchanges. (Dow Comments 3, 
June 5, 2020; Joint Comments (ACC, CRA, TCI, & TFI) 5, June 5, 2020; 
see also NGFA Reply 9, July 6, 2020 (expressing concerns that a rail 
car ``could sit idle at origin for days or a week or more due to missed 
pulls with the original trip plan never generated, creating bunching 
issues at the origin shipper that are not documented by the 
carrier'').) \32\
---------------------------------------------------------------------------

    \32\ In addition, ISRI requests that the Board require Class I 
carriers to provide ETAs for all cars listed in a pipeline report 
detailing the ``cars in the system for future deliveries,'' because 
``[a]t least one Class I railroad that provides its customers with a 
pipeline report fails to consistently include an ETA for the cars 
listed.'' (ISRI Comments 4, June 5, 2020.) However, this proceeding 
focuses on the information that Class I carriers must provide on or 
with demurrage invoices and ISRI's request is beyond that scope.
---------------------------------------------------------------------------

    NSR states that it opposes a rule that would require carriers to 
develop an ETA immediately upon receipt of a car in interchange, as 
this would require ``the reconfiguration of [NSR's] trip plan software, 
an incredibly complicated reconfiguration that would take years to 
implement due to the legacy infrastructure.'' (NSR Reply 4-5, July 6, 
2020.) CN opposes any definition that would require it to provide an 
ETA before a trip plan is created. (CN Reply 5, July 6, 2020.)
    In the SNPRM, the Board invited comment on whether the original ETA 
may differ depending on whether the rail car is loaded or empty. SNPRM, 
EP 759, slip op. at 7. In response, joint commenters (ACC, CRA, TCI, 
and TFI) assert that different definitions are not necessary because 
carriers' demurrage rules generally apply the same calculation and 
constructive placement methods to all private cars. (Joint Comments 
(ACC, CRA, TCI, & TFI) 5, June 5, 2020.)
    The Board is persuaded that the original ETA provides useful 
information to rail users for verifying credits, when applicable, and 
identifying delays that impact demurrage. Although not dispositive as 
to the cause of bunching, original ETAs will allow rail users to better 
understand whether there are delays in shipment beyond carriers' 
initial expectations and will lead to better communication between 
carriers and rail users about the causes of demurrage. Likewise, 
original ETAs may give rail users more insight into which demurrage 
charges to probe further to determine whether carrier-caused bunching 
is present. Furthermore, original ETAs will assist certain rail users 
in verifying credits because at least one Class I carrier issues 
credits based on rail cars that do not meet their original ETAs. (See 
NSR Reply 2-3, July 6, 2020.) Given these benefits and the fact that 
carriers already generate original ETAs in the ordinary course of 
business, inclusion of the original ETA as a minimum requirement is 
appropriate.
    The Board rejects the argument that updated (or ``real-time'') ETAs 
render original ETAs less useful. The Board recognizes that updated 
ETAs help rail users account for transit variability and plan for rail 
cars' arrival; however, they may be less useful when rail users need to 
verify demurrage charges on invoices that may be issued weeks later. In 
contrast, allowing rail users to readily compare significant deviations 
between original ETAs and car arrivals once invoices are issued could 
lead to better information exchange about the causes of delay. BNSF 
states that rail users may record original ETAs and updates as needed 
from the information carriers provide on their online platforms. 
However, the Board finds it unreasonable to expect rail users to keep 
records of fluctuating ETAs for all rail cars to prepare for the 
possibility that some of those rail cars ultimately accrue demurrage. 
As discussed in the NPRM, minimum information requirements are intended 
to ensure that rail users do not need to undertake unreasonable efforts 
to gather information that can be provided by carriers in the first 
instance. NPRM, EP 759, slip op. at 10.
    The Board agrees with the Class I carriers' assertion that rail 
cars may not be delivered by their original ETAs due to a variety of 
causes, including rail users' behavior, carrier-caused delays, or other 
variables. Accordingly, a missed original ETA would not--without more-- 
establish that carrier-caused bunching (or any other event) occurred 
but rather would give rail users information about delays that may then 
prompt them to conduct further investigations or adjust their own 
conduct to better account for transit variabilities and avoid future 
demurrage charges. In any given case, additional facts and 
circumstances would need to be considered in determining whether 
demurrage charges arise from carrier-caused bunching. The fact-specific 
nature of bunching issues is precisely why the Board has determined 
that demurrage disputes pertaining to bunching are best addressed in 
individual cases. See Demurrage Liability, EP 707, slip op. at 23-24; 
see also Pol'y Statement, EP 757, slip op. at 11-12.
    The Board recognizes Class I carriers' concern that rail users may 
misinterpret original ETAs as guaranteed transit times or as a service 
standard that would override private agreements between rail users and 
carriers, and clarifies here that that is not the purpose or effect of 
the original ETA requirement. The requirement to provide an original 
ETA established here obligates carriers only to provide rail users with 
this information on or with demurrage invoices; it does not constitute, 
or require carriers to provide, service guarantees. The requirement 
does not create a separate service standard for carriers. Finally, 
inclusion of an original ETA requirement in the final rule does not 
change the fact that the Board will determine whether demurrage charges 
are reasonable under section 10702 and comport with the statutory 
requirements specified in section 10746 in the context of case-specific 
facts and circumstances. Accordingly, the existence of the original ETA 
in the minimum information requirements does not establish whether a 
delay in shipment renders a demurrage charge unreasonable. (See Joint 
Reply (ACC, CRA, TCI, & TFI) 7, July 6, 2020.) \33\
---------------------------------------------------------------------------

    \33\ The Board rejects AFPM's suggestion that certain rail users 
who own or lease the cars they use should be allowed to charge 
carriers demurrage when they miss their original ETAs, as AFPM's 
request is beyond this scope of this proceeding, which focuses on 
the information that Class I carriers must provide on or with 
demurrage invoices. (AFPM Comments 2, June 5, 2020.)
---------------------------------------------------------------------------

    With respect to CN's and BNSF's assertions that an original ETA 
requirement would incentivize carriers to cushion their ETA forecasts, 
the Board expects that Class I carriers have other motivations to give 
rail users accurate estimates about rail car arrivals, including to 
provide good customer service, improve their performance metrics,\34\ 
and ensure that the rail network runs efficiently by

[[Page 17743]]

giving rail users the best opportunity to plan for the efficient use of 
rail assets. Although it may be appropriate to make adjustments to ETAs 
based on real-time information, providing the most accurate estimates 
available is in the interest of both rail carriers and their customers.
---------------------------------------------------------------------------

    \34\ See, e.g., UP Comments 3, May 8, 2019, Oversight Hearing on 
Demurrage & Accessorial Charges, EP 754 (stating that its on-time 
delivery rates were the best they had been in two years); NSR 
Comments 3, May 8, 2019, Oversight Hearing on Demurrage & 
Accessorial Charges, EP 754 (describing measures taken to improve 
on-time delivery performance); CSXT Comments 3, May 8, 2019, 
Oversight Hearing on Demurrage & Accessorial Charges, EP 754 
(explaining that bunching issues had decreased with continued 
improvements to operating performance and resulting transit times).
---------------------------------------------------------------------------

    The Board will adopt the definition of original ETA discussed in 
the SNPRM, which will require Class I carriers to generate ETAs 
promptly following interchange or release of shipment to the invoicing 
carrier based on the first movement of the invoicing carrier. SNPRM, EP 
759, slip op. at 7. The Board declines to adopt the proposal to require 
carriers to generate ETAs ``immediately'' following interchange or 
release of shipment since the inclusion of the word ``promptly'' in the 
definition is sufficient to ensure that there is not undue delay at 
origin or interchange before ETAs are created for rail cars. The Board 
also expects that it would not be in Class I carriers' interests, from 
an efficiency standpoint, to hold rail cars at their yards without trip 
plans.\35\
---------------------------------------------------------------------------

    \35\ Because no commenter indicates that the original ETA would 
differ depending on whether a rail car is loaded or empty, the Board 
will make no such distinction in the final rule.
---------------------------------------------------------------------------

    Interchange Date and Time. Many rail users also support a 
requirement that Class I carriers provide the date and time that cars 
are received at interchange, asserting that such information would be 
useful in identifying upstream carrier-caused bunching.\36\ ILTA argues 
that ``having the interchange information would allow rail users to 
calculate transit time on an upstream carrier's line and allow impacted 
users to credibly approach the upstream carrier to take responsibility 
for delays it may have caused.'' (ILTA Comments 2, June 4, 2020.) Dow 
asserts that it would use the date and time of interchange, along with 
the original ETA, to ``identify circumstances that may warrant a deeper 
inquiry into whether demurrage charges arise from carrier-caused 
bunching and delays beyond Dow's reasonable control.'' (Dow Reply 3-4, 
July 6, 2020.) NITL acknowledges that ``there can be multiple factors 
causing car delays that result in demurrage'' and argues that 
interchange information, along with original ETAs, ``would assist rail 
customers and railroads in their investigations of invoiced charges.'' 
(NITL Reply 6, July 6, 2020.)
---------------------------------------------------------------------------

    \36\ (See AFPM Comments 6, June 5, 2020; FRCA Comments 1, June 
5, 2020; ISRI Comments 5, June 5, 2020; Joint Comments (ACC, CRA, 
TCI, & TFI) 5, June 5, 2020; NACD Comments 4, June 5, 2020; NITL 
Comments 4-5, June 5, 2020; PCA Comments 2, June 5, 2020.)
---------------------------------------------------------------------------

    Dow and joint commenters (ACC, CRA, TCI, and TFI) contend that 
Class I carriers should provide the date and time for every 
interchange. (Dow Comments 3, June 5, 2020; Joint Comments (ACC, CRA, 
TCI, & TFI) 5, June 5, 2020.) ISRI and NITL state that information 
about all interchanges would be helpful but ask that, at a minimum, the 
Board require Class I carriers to provide information about the last 
interchange with the invoicing carrier. (ISRI Comments 6, June 5, 2020; 
NITL Comments 4, June 5, 2020.)
    BNSF, CSXT, and NSR state that they provide rail users with the 
date and time of interchange on their online platforms. (BNSF Comments 
18, June 5, 2020; CSXT Comments 3, June 5, 2020; NSR Comments 8, June 
5, 2020.) However, BNSF argues that an invoice requirement ``would be 
counterproductive as it would create confusion over the relevance of 
such data and potentially encourage unnecessary disputes over 
appropriate demurrage charges.'' (BNSF Comments 16, 18, June 5, 2020.) 
BNSF, UP, and NSR assert that they do not use interchange information 
to calculate demurrage. (BNSF Comments 18, June 5, 2020; UP Comments 4, 
June 5, 2020; NSR Reply 2-3, July 6, 2020.) Additionally, NSR argues 
that this requirement, if adopted, should be limited to the last 
interchange since it ``has no visibility into the operations of its 
interchange partners, and does not have access to information regarding 
any trip plan or ETA that may have been generated upstream by other 
carriers.'' (NSR Comments 8, June 5, 2020.)
    The Board will require Class I carriers to provide, on or with 
demurrage invoices, the date and time they received rail cars at 
interchange, if applicable. The Board finds that interchange 
information may assist rail users in identifying where delays occurred 
on joint-line movements, which would in turn allow rail users to know 
when to adjust their own conduct to account for upstream transit 
variabilities and conduct further inquiries when necessary. These 
further inquiries may be especially important when demurrage disputes 
involve concerns about upstream bunching. See Pol'y Statement, EP 757, 
slip op. at 11-12. As with the original ETA, however, the Board 
clarifies that the date and time of interchange does not establish 
whether upstream bunching occurred and, instead, must be considered in 
the context of other relevant facts and circumstances.
    The Board will limit this requirement to the last interchange with 
the invoicing carrier. In the SNPRM, the Board stated that Class I 
carriers would likely have access to the date and time of interchange 
because this information is used in the ordinary course of business to 
track car movement and place cars. SNPRM, EP 759, slip op. at 7. 
According to NSR, Class I carriers do not have access to information 
about upstream interchanges with other carriers in the ordinary course 
of business; accordingly, the Board will limit this requirement to the 
information that Class I carriers can provide without the potential 
burden of having to consult with other carriers.
    Reasonable Request Proposal. Rail users and rail carriers that 
commented on the Board's alternative proposal to require carriers to 
provide original ETA and date and time of interchange only upon 
reasonable request oppose the proposal. Several rail users argue that a 
reasonable request provision would be burdensome and cause unnecessary 
delays in collecting information.\37\ CSXT and UP also contend that a 
reasonable request provision is unnecessary because rail users can 
access the original ETA and date and time of interchange on demand 
through their online platforms. (CSXT Comments 3, June 5, 2020; UP 
Comments 5, June 5, 2020.) The Board will not include a reasonable 
request provision in the final rule because the comments offer no 
indication that it would benefit rail users or Class I carriers.
---------------------------------------------------------------------------

    \37\ (See Dow Comments 5, June 5, 2020; AFPM Comments 6, June 5, 
2020; ISRI Comments 6-7, June 5, 2020; NGFA Comments 6, June 5, 
2020; NITL Comments 5, June 5, 2020; Joint Comments (ACC, CRA, TCI, 
& TFI) 7, June 5, 2020.)
---------------------------------------------------------------------------

5. Ordered-In Date and Time
    Rail users identified the date and time that cars are ordered into 
a rail user's facility as information that would help them validate 
invoices more efficiently. In response, the Board invited comment in 
the SNPRM on a modification to proposed section 1333.4 that would 
require Class I carriers to provide the ordered-in date and time on or 
with demurrage invoices. SNPRM, EP 759, slip op. at 8-9.
    Rail users replied that access to the ordered-in date and time 
would allow them to verify demurrage invoices more efficiently by 
comparing carriers' information to their own records and determining 
the basis for carriers' demurrage assessments, understand how their own 
actions impacted the demurrage charges, and calculate credits, if 
applicable.\38\ Dow also

[[Page 17744]]

emphasizes that this information is a ``crucial demurrage metric 
because demurrage stops accruing at that time'' and reiterates that 
including this information is consistent with the Board's proposal to 
require the date and time of constructive placement, at which the 
accrual of demurrage starts. (Dow Comments 5, June 5, 2020.) Joint 
commenters (ACC, CRA, TCI, and TFI) support this requirement but argue 
that carriers should be required to provide ``the actual date and time 
the carrier receives the order to place the cars at the receiving 
facility'' since at least one carrier ``appears to purposefully record 
a different ordered-in date and time in its system.'' (Joint Comments 
(ACC, CRA, TCI, & TFI) 7, June 5, 2020.)
---------------------------------------------------------------------------

    \38\ (See ILTA Comments 3-4, June 4, 2020; IWLA Comments 2, June 
5, 2020; NACD Comments 4, June 5, 2020; Dow Comments 5, June 5, 
2020; ISRI Comments 7, June 5, 2020; NITL Comments 5-6, June 5, 
2020; AFPM Comments 7-8, June 5, 2020.)
---------------------------------------------------------------------------

    In response, CP argues that the Board should not require carriers 
to provide the date and time the rail user places the order in all 
circumstances because this information would not always impact the 
demurrage calculation and could cause administrative confusion. (CP 
Reply 4-5, July 6, 2020.) For example, CP explains that it allows rail 
users that operate closed-gate facilities to order in cars while the 
cars are en route, for which CP records the date that the cars arrive 
at the serving yard and are available for placement. (Id. at 3.) In 
this scenario, CP states that the order for placement upon arrival 
keeps the demurrage clock from starting. (Id. at 3-4.) Furthermore, CP 
states that it allows certain rail users to order in cars for the 
current day and up to three days in the future and, in these 
circumstances, records the date selected for car placement because this 
date stops the accrual of demurrage. (Id. at 4.) Likewise, NSR states 
that it provides rail users with the ``effective order date'' on 
invoices, which is the date ``selected by the customer from their 
service schedule'' and ``represents the date the railcar is to be 
delivered.'' (NSR Comments 8, June 5, 2020.) NSR states that the 
ordered-in date and time that a rail user enters online is not used for 
demurrage purposes but is provided in an order confirmation email. 
(Id.)
    CN states that it already provides rail users with the ordered-in 
date and time but objects to the inclusion of this requirement because 
rail users would already have this information in their own records. 
(CN Comments 11, June 5, 2020.) CN also argues that the disputes the 
Board references in the SNPRM \39\ would not be resolved by access to 
ordered-in date and time information. (Id.) CSXT, UP, and BNSF also 
indicate that, if applicable, they provide the ordered-in date and time 
on their invoices or online platforms. (CSXT Comments 3, June 5, 2020; 
UP Comments, V.S. Prauner 2, June 5, 2020; BNSF Comments 2-3, June 5, 
2020.)
---------------------------------------------------------------------------

    \39\ See SNPRM, EP 759, slip op. at 9 (providing examples of 
comments and testimony received in Oversight Hearing on Demurrage & 
Accessorial Charges, Docket No. 754, describing issues with 
demurrage accruing on rail cars that had been ordered into a 
facility).
---------------------------------------------------------------------------

    The comments received in response to the SNPRM do not change the 
Board's view that the ordered-in date and time, which is essential to 
the calculation of demurrage at closed-gate facilities, would be 
valuable on or with demurrage invoices for both demurrage accrual and 
verification purposes. See SNPRM, EP 759, slip op. at 8. Although, as 
CN points out, rail users may record the ordered-in date and time 
themselves, the Board finds that documentation of the ordered-in date 
and time, which would stop the accrual of demurrage, would be very 
useful when viewed along with the other information on demurrage 
invoices, including the event that starts demurrage accrual and the 
resulting credits and charges, as applicable. Additionally, as rail 
users explain, having access to the ordered-in date and time recorded 
by Class I carriers may help rail users identify discrepancies between 
the carrier's records and the rail user's records. CN argues that the 
issues stakeholders raised in comments and testimony in Oversight 
Hearing on Demurrage & Accessorial Charges, Docket No. EP 754, which 
the Board referenced in the SNPRM, EP 759, slip op. at 9, would not be 
resolved through the ordered-in date and time, but the Board did not 
state that the ordered-in date and time would be dispositive in these 
or any other specific disputes. Rather, as the Board stated in the 
SNPRM, the ordered-in date and time requirement is intended to give 
rail users easier access to information for their own verification 
purposes. Id. Furthermore, the comments from six Class I carriers 
stating that they currently provide rail users with the ordered-in date 
and time confirm that providing this information would not be overly 
burdensome for Class I carriers.
    Since Class I carriers' comments demonstrate that the date and time 
the carrier receives the order from the rail user to place the cars is 
not used to calculate demurrage in all circumstances, the Board will 
not define the ordered-in date and time requirement as narrowly as 
joint commenters request. (See Joint Comments (ACC, CRA, TCI, & TFI) 7, 
June 5, 2020.) Rather, the ordered-in date and time will mean the date 
and time at which demurrage first stops accruing with respect to a 
closed-gate facility. Depending on the carrier's individual system, 
this may be the date and time the carrier receives the order to place 
cars from the rail user, the date selected by the rail user for car 
placement, or another similar metric.\40\
---------------------------------------------------------------------------

    \40\ As CP indicates, there are scenarios when an ordered-in 
date and time does not have a bearing on demurrage. For example, 
when a rail user orders in a car when the car is still en route to 
CP's serving yard, CP states that it records the ordered-in date and 
time based on when the car arrives in the serving yard rather than 
when the rail user places the order. (CP Reply 3, July 6, 2020.) 
Because CP indicates that the demurrage clock would not start in 
such a scenario, the Board would not expect such instances to result 
in a demurrage charge.
---------------------------------------------------------------------------

6. Other Information Requirements Proposed by Rail Users
    In addition to the proposals discussed above, rail users identify 
an array of other information that they contend would be useful on 
demurrage invoices.\41\ In response, CSXT states its general opposition 
to the additional items. (CSXT Reply 2, Dec. 6, 2019.) Moreover, CSXT, 
NSR, and UP argue that online platforms are the best way to provide an 
array of information. (See CSXT Reply 4, Dec. 6, 2019 (stating that 
CSXT already provides almost all of the requested information ``through 
one of its various platforms''); NSR Reply 1, Dec. 6, 2019 (stating 
that NSR provides most of the requested information online); UP Reply 
3, Dec. 6, 2019 (arguing that an online platform can meet rail users' 
needs in a ``customized, tailored way'').)
---------------------------------------------------------------------------

    \41\ This information includes: Dwell time, (ACC Comments 2, 
Nov. 6, 2019; AFPM Comments 6-7, Nov. 6, 2019); railroad service 
events or, alternatively, those events that result in the issuance 
of credits, (AFPM Comments 7, Nov. 6, 2019; ISRI Comments 10, Nov. 
6, 2019); car inventory at open gate facilities, (ISRI Comments 10, 
Nov. 6, 2019); destination station, state of shipment, and 
information to confirm that a carrier has not issued overlapping 
charges, (AFPM Comments 6-7, Nov. 6, 2019); date and time of 
notification to the rail user if different than constructive 
placement, car type and ownership, the standard transportation 
commodity code of the commodity shipped, payment information, and 
station of constructive placement, (CPC Comments 4-5, Nov. 6, 2019); 
location, date, and time a train is ``laid down,'' sequence number, 
monthly summary listing all demurrage charges, and reasons for the 
charges, (WCTL & SEC Comments 11-12, Nov. 6, 2019); date and time 
that a car order is placed with the carrier, information about 
whether cars were spotted or pulled within the relevant service 
window, and any missed switch dates and scheduled non-switch dates, 
(NGFA Comments 5-6, June 5, 2020); the time the waybill was created, 
``[r]ailcar origin railroad pick-up date/time,'' and original 
estimated transit time of each railcar, (ILTA Comments 3-4, June 5, 
2020).
---------------------------------------------------------------------------

    The Board declines to incorporate additional items beyond those 
discussed in the NPRM and SNPRM into the final

[[Page 17745]]

rule at this time. The Board's minimum information requirements are not 
intended to encompass every piece of information that may be useful to 
rail users or that may bear on demurrage. Rather, the minimum 
information adopted in the final rule represents what the Board has 
determined will have the greatest impact on rail users' ability to 
validate demurrage charges, properly allocate demurrage responsibility, 
and modify their behavior if their own actions led to the demurrage 
charges. Many of the other items suggested by rail users would provide 
additional detail about the movement of rail cars but are not as 
central to an initial assessment of demurrage charges as the minimum 
information requirements adopted here. Moreover, in adjudicated cases, 
parties may seek discovery to gain further information about the causes 
of delays and demurrage. Several Class I carriers indicate that they 
provide, in some format, much of the information rail users identified 
in their comments, and the Board encourages them to continue to do so.

Alternative Visibility Platforms

    In the NPRM, the Board invited comments on the adequacy of other 
billing or supply chain visibility tools or platforms (other than 
invoices or accompanying documentation) to provide rail users with 
access to the proposed minimum information. NPRM, EP 759, slip op. at 9 
n.13. In response, Class I carriers state that their existing online 
platforms provide rail users with most (or, in some cases, all) of the 
information that the Board proposes.\42\ UP asserts that its online 
platform benefits rail users by allowing them to create custom reports 
with information unique to their needs. (UP Comments 5, Nov. 6, 2019.) 
CP indicates that its online platform provides rail users with access 
to current information as shipments move across the rail network, as 
well as the ability to log concerns in real time, which obviates the 
need ``to review historical information to identify improper demurrage 
charges due to railroad-caused bunching.'' (CP Comments 3, June 5, 
2020.)
---------------------------------------------------------------------------

    \42\ (See KCS Comments 5, Nov. 6, 2019; CSXT Comments 10, Nov. 
6, 2019; UP Comments 2, Nov. 6, 2019; CP Comments 4, Nov. 6, 2019; 
CN Comments 4, Nov. 6, 2019; BNSF Comments 2-3, June 5, 2020; NSR 
Reply 1, Dec. 6, 2019.)
---------------------------------------------------------------------------

    Class I carriers ask that, if the Board adopts minimum information 
requirements, the Board allow them to provide the information on their 
online platforms, instead of on or with invoices.\43\ CSXT argues that 
the demurrage information currently on its online platform is ``easily 
accessible'' and contends that if the Board were to require carriers to 
provide all of the required information on the invoice itself or 
determine that ``software platforms are acceptable only if all 
information is made available or downloadable in one central 
location,'' it would have to undertake a substantial and costly 
software redesign. (CSXT Comments 6, June 5, 2020.) UP also argues that 
invoices with all of the minimum information the Board proposes would 
not be useful to rail users since ``[a] combination of too many fields 
and fields that are irrelevant to most customers will make invoices 
cluttered and unreadable.'' (UP Comments 5, June 5, 2020.) Likewise, 
CSXT objects to a rule that would require it to compile the information 
into one invoice document because its physical invoice ``is already 
challenged in terms of available physical space'' and ``[i]t would be 
difficult to add additional categories without rendering the invoice 
unreadable.'' (CSXT Comments 8 & n.17, June 5, 2020.)
---------------------------------------------------------------------------

    \43\ (CN Comments 7, June 5, 2020; CP Comments 6, June 5, 2020; 
CSXT Comments 2, June 5, 2020; NSR Comments 2, June 5, 2020; BNSF 
Comments 19, June 5, 2020; UP Comments 7, June 5, 2020.)
---------------------------------------------------------------------------

    Conversely, several rail users describe carriers' current online 
platforms as impractical and cumbersome. (WCTL & SEC Comments 10, Nov. 
6, 2019; Joint Reply (ACC, CRA, TFI, & NITL) 2, Dec. 6, 2019; Dow Reply 
3, Dec. 6, 2019; ISRI Reply 2, July 6, 2020.) Joint commenters (ACC, 
CRA, TFI, and NITL) explain that locating information is a ``multistep 
process'' in which ``[a] customer cannot simply enter a demurrage 
invoice number and download a report of all of the car-event data for 
each car on the invoice'' but rather must access information for each 
car separately and often in multiple locations on the carrier's online 
platform. (Joint Reply (ACC, CRA, TFI, & NITL) 3, Dec. 6, 2019.) Dow 
specifically describes online portals belonging to four Class I 
carriers as cumbersome and identifies obstacles rail users may face in 
auditing demurrage invoices on these platforms, such as needing to 
search for certain information on a car-by-car basis, manually enter 
car marks, and navigate through multiple pages on the portal to access 
demurrage data. (Dow Reply 3-6, Dec. 6, 2019.) Likewise, PCA argues 
that since carriers are ``far from consistent in the level of 
information provided, the ease of access of that information, and the 
transparency of their demurrage procedures,'' rail users are often 
forced to ``cobble together'' the information on carriers' online 
platforms. (PCA Comments 2, June 5, 2020.) Nonetheless, certain rail 
users state that they do not object to Class I carriers providing the 
minimum information on their online platforms if they provide it in a 
format that rail users can download into a single, machine-readable 
file. (Dow Reply 8, July 6, 2020; ISRI Reply 2, 5, July 6, 2020.)
    The record belies Class I carriers' claims that their current 
online platforms are more useful to rail users than invoices with 
minimum invoicing requirements. Rail users state they must, in many 
cases, search for, organize, and consolidate the information themselves 
from multiple locations on Class I carriers' online platforms. The 
final rule will ensure that rail users need not make unreasonable 
efforts to access basic information necessary to efficiently review and 
validate their demurrage invoices. In addition, Class I carriers will 
have flexibility to provide the minimum information either on the 
invoices or with the invoices as accompanying documentation. 
Furthermore, since demurrage issues may not be apparent until rail cars 
are delivered and demurrage is charged, the Board is unconvinced by 
CP's argument that allowing rail users to submit concerns on an online 
portal while shipments are in transit eliminates the need to review 
information on or with demurrage invoices.
    Accordingly, the Board determines that Class I carriers must 
provide the minimum information described in section 1333.4 on 
demurrage invoices or with demurrage invoices as accompanying 
documentation. Class I carriers may provide the invoices as paper 
invoices, invoices attached to emails, invoices that are accessible on 
their online platforms, or other similar formats where the information 
is consolidated.\44\
---------------------------------------------------------------------------

    \44\ The Board also clarifies that the final rule in this 
proceeding is a default rule, and Class I carriers and rail users 
may enter into separate agreements about how to convey and receive 
demurrage information.
---------------------------------------------------------------------------

Machine-Readable Data

    In response to the NPRM, many rail user commenters voiced a 
preference for ``machine-readable'' data containing the minimum 
information. See SNPRM, EP 759, slip op. at 9-10 (describing comments 
received in response to the NPRM related to machine-readable data). The 
Board, therefore, invited additional comment on matters associated with 
modifying its regulations to require Class I carriers to provide rail 
users access to machine-

[[Page 17746]]

readable data in a format to be chosen by the individual Class I 
carrier, such as a machine-readable invoice, a separate electronic file 
containing machine-readable data, or a customized link so rail users 
could directly download data in a machine-readable format. Id. at 10. 
The Board also invited comment on ways to prevent information 
inaccessibility for rail users without resources for coding or new 
upfront costs, and on any other issues pertaining to the accessibility 
of machine-readable data for small rail users. Id. Finally, the Board 
invited comment on how to define ``machine-readable,'' including the 
following definition proposed by commenters: ``A structured data file 
format that is open and capable of being easily processed by a 
computer. A format is open if it is not limited to a specific software 
platform and not subject to restrictions on re-use.'' Id.
    In response to the SNPRM, rail users broadly support a requirement 
for machine-readable data, arguing that it will allow rail users to 
analyze demurrage invoices more efficiently and effectively by reducing 
the need for manual review, which is resource-intensive and 
imprecise.\45\ Moreover, AFPM states that it supports the flexible 
compliance options identified by the Board, while other rail users 
request specific formatting requirements. (AFPM Comments 8, June 5, 
2020; Joint Comments (ACC, CRA, TCI, & TFI) 9, June 5, 2020 (requesting 
machine-readable invoices by email as attachments or direct links); 
NGFA Comments 7, June 5, 2020 (requesting customized links to machine-
readable data); NITL Reply 7, July 6, 2020 (requesting machine-readable 
data in a ``single centralized location'').) In addition to machine-
readable data, NGFA contends that rail users should be able to request 
paper or PDF invoices, (NGFA Comments 6, June 5, 2020), and NACD argues 
that invoices should ``continue to be available in standard format'' 
since small rail users would find analyzing machine-readable data 
difficult and costly, (NACD Comments 4-5, June 5, 2020).
---------------------------------------------------------------------------

    \45\ (See ILTA Comments 1, 3, June 4, 2020; AFPM Comments 8, 
June 5, 2020; Dow Comments 5-6, June 5, 2020; IWLA Comments 2-3, 
June 5, 2020; Joint Comments (ACC, CRA, TCI, & TFI) 8, June 5, 2020; 
Lansdale Comments 1, June 5, 2020; NGFA Comments 6, June 5, 2020; 
NITL Comments 6, June 5, 2020; PCA Comments 2, June 5, 2020.) See 
also SNPRM, EP 759, slip op. at 9-10 (describing comments received 
in response to the NPRM related to machine-readable data).
---------------------------------------------------------------------------

    BNSF, NSR, CP, CN, and UP state that they already provide rail 
users with some form of machine-readable data.\46\ NSR states that it 
supports the use of machine-readable data but urges the Board not to 
make a requirement ``so prescriptive that it would stifle carrier and 
technological innovation on carriers' online platforms.'' (NSR Comments 
2, 6, June 5, 2020.) CSXT states that it does not oppose providing 
machine-readable data on its online platform as long as ``the Board 
does not mandate any particular format or require that the information 
be provided in one place only or in a single data file.'' (CSXT 
Comments 6, June 5, 2020.) UP also asks the Board to specify that 
carriers can meet the machine-readable data requirement by making data 
available to rail users via their online platforms. (UP Comments 5-6, 
June 5, 2020.)
---------------------------------------------------------------------------

    \46\ BNSF states that rail users can sign up for emailed reports 
in Excel format and export reports in comma-separated values (CSV), 
Excel, and PDF formats from its online platform. (BNSF Comments 5, 
June 5, 2020.) NSR states that rail users can download spreadsheets, 
including Excel and CSV files, with detailed supporting information 
for the demurrage charges reflected on invoices. (NSR Comments 3, 
June 5, 2020.) CP indicates that it makes ``a substantial amount'' 
of the information identified by the Board available in a 
spreadsheet. (CP Comments 4-5, June 5, 2020.) CN states that it 
currently provides machine-readable data ``on request to certain 
customers'' and is working to provide downloadable machine-readable 
data to all customers. (CN Comments 12, June 5, 2020.) According to 
UP, invoices can be downloaded as CSV files on its online platform 
with additional supporting information downloadable in Excel format. 
(UP Comments 5, June 5, 2020.) Additionally, CSXT currently provides 
access to some downloadable machine-readable data, according to one 
rail user's comments. (See Dow Reply 6, Dec. 6, 2019.)
---------------------------------------------------------------------------

    Regarding the definition of ``machine-readable,'' joint commenters 
(ACC, CRA, TCI, and TFI) and NITL support the definition proposed by 
some commenters in response to the NPRM: \47\ ``a structured data file 
format that is open and capable of being easily processed by a 
computer. A format is open if it is not limited to a specific software 
platform and not subject to restrictions on re-use.'' (Joint Comments 
(ACC, CRA, TCI, & TFI) 8, June 5, 2020; NITL Comments 6, June 5, 2020.) 
Joint commenters (ACC, CRA, TCI, and TFI) contend that this definition 
would obviate the need for special coding and, therefore, ensure that 
small rail users can access machine-readable data. (Joint Comments 
(ACC, CRA, TCI, & TFI) 8, June 5, 2020.) NGFA agrees with this 
definition but would add the condition that a format is open if it 
``can be read and interpreted automatically by a computer program 
without the need for manual intervention.'' (NGFA Comments 6-7, June 5, 
2020.) In response to the SNPRM, Dow proposes an alternative 
definition, suggesting that the Board adopt a definition similar to the 
one used for the Federal Information Policy \48\ and define machine-
readable as ``an open format that can be easily processed by computer 
without human intervention while ensuring no semantic meaning is 
lost.'' (Dow Comments 6, June 5, 2020.) UP argues that the Board should 
specify that CSV and Excel files meet the definition of machine-
readable data. (UP Comments 5-6, June 5, 2020.)
---------------------------------------------------------------------------

    \47\ See SNPRM, EP 759, slip op. at 9 (referring to proposal by 
joint commenters (ACC, CRA, TFI, and NITL) and Dow).
    \48\ See 44 U.S.C. 3502(18).
---------------------------------------------------------------------------

    Rail users convincingly argue that machine-readable data will 
facilitate efficient auditing by allowing them to validate invoices 
electronically, thereby reducing the time and resources they must 
dedicate to manual review. Furthermore, Class I carriers appear to 
recognize the benefits of machine-readable data, as most provide some 
machine-readable data now or plan to do so in the future. Accordingly, 
the Board will adopt a machine-readable data requirement to ensure that 
all rail users have the option to access machine-readable data 
containing the minimum information discussed above. As proposed in the 
SNPRM, the Board will give Class I carriers the discretion to determine 
how to provide rail users with access to machine-readable data, such 
as, for example, through a machine-readable invoice, a separate 
electronic file, a customized link, or another similar option. SNPRM, 
EP 759, slip op. at 10.
    The Board will adopt a definition for machine-readable data that is 
``data in an open format that can be easily processed by computer 
without human intervention while ensuring no semantic meaning is 
lost.'' This definition, which is similar to the definition referenced 
in the SNPRM, is also consistent with the definition adopted for the 
Federal Information Policy at 44 U.S.C. 3502(18). However, unlike the 
Federal Information Policy definition, the Board's definition specifies 
that the data must be provided in an ``open format,'' to be defined as 
``a format that is not limited to a specific software program and not 
subject to restrictions on re-use'' so that Class I carriers may choose 
the program with which to provide machine-readable data in an open 
format (e.g., CSV). The open format will also ensure that rail users 
will not need access to specific software programs to process the data. 
Moreover, to accommodate those small rail users that state that they 
would find machine-readable data difficult to manage, the requirement 
for Class I carriers to provide machine-readable data to rail users 
will be in addition to, not in lieu

[[Page 17747]]

of, the requirement to provide the minimum information on or with their 
standard invoices, as discussed above.\49\ The text is set forth in new 
section 1333.5.
---------------------------------------------------------------------------

    \49\ As discussed above, Class I carriers and rail users may 
enter into separate agreements to convey and receive only machine-
readable data without the standard invoice option.
---------------------------------------------------------------------------

Appropriate Action To Ensure Demurrage Charges Are Accurate and 
Warranted

    In the NPRM, the Board proposed to require Class I carriers to 
``take appropriate action to ensure that the demurrage charges are 
accurate and warranted'' prior to sending demurrage invoices. NPRM, EP 
759, slip op. at 10. In response to commenters' concerns that this 
provision would create more uncertainty and potential litigation over 
its meaning, the Board invited further comment in the SNPRM from Class 
I carriers about the actions they currently take, and from all 
stakeholders about the actions Class I carriers reasonably should be 
required to take, to ensure that demurrage invoices are accurate and 
warranted. SNPRM, EP 759, slip op. at 10-11.
    In response to the SNPRM, rail users propose a variety of actions 
that they argue Class I carriers should be required to take to ensure 
invoice accuracy, such as establishing auditing procedures,\50\ showing 
how charges are calculated; \51\ providing supporting 
documentation,\52\ offering concise explanations for the charges,\53\ 
certifying practices to the Board,\54\ consulting with rail users,\55\ 
and ensuring the accuracy of crew reporting.\56\
---------------------------------------------------------------------------

    \50\ (See ILTA Comments 3, June 4, 2020; ISRI Comments 10, June 
5, 2020; NITL Comments 7, June 5, 2020; Dow Comments 7, June 5, 
2020; Joint Comments (ACC, CRA, TCI, & TFI) 9, June 5, 2020.)
    \51\ (See Dow Comments 7, June 5, 2020; Joint Comments (ACC, 
CRA, TCI, & TFI) 9, June 5, 2020.)
    \52\ (See AFPM Comments 9, June 5, 2020; IWLA Comments 3, June 
5, 2020; ILTA Comments 3, June 4, 2020; NGFA Comments 8, June 5, 
2020; NITL Reply 3, July 6, 2020.)
    \53\ (See AFPM Comments 9-10, June 5, 2020; NACD Comments 5, 
June 5, 2020; NGFA Comments 8, June 5, 2020.)
    \54\ (See FRCA Comments 2, June 5, 2020 (arguing that the Board 
should require carriers to ``certify that their rules and practices 
comply with the Board's standards''); NGFA Comments 8, June 5, 2020 
(asserting that carriers should be required to ``inform the Board in 
writing of the specific steps each one takes to ensure the accuracy 
of its respective demurrage invoices, with the [Board] subsequently 
making such carrier statements publicly available on its 
website'').)
    \55\ (See NGFA Comments 3, June 5, 2020 (arguing that prior to 
issuing invoices, carriers should ``notify and consult with the 
affected rail customer to validate the accuracy and legitimacy of 
the charge'').)
    \56\ (Joint Reply (ACC, CRA, TCI, & TFI) 17, July 6, 2020.)
---------------------------------------------------------------------------

    Class I carriers continue to oppose the appropriate-action proposal 
as unnecessary and overly restrictive. CN argues that the Board should 
not mandate any minimum level of appropriate action since carriers 
``should have flexibility to exercise judgment to pursue an approach 
that works for [their] particular circumstances, including whether to 
reasonably rely on technological innovations to enhance accuracy or to 
enlist more manual review.'' (CN Comments 13, June 5, 2020.) CSXT 
contends that the proposed requirement ``places carriers in an 
untenable situation, as they may either fall short of a vague standard 
of `appropriateness' or be unable to utilize the prescribed solutions 
that the Board mandates to ensure accuracy.'' (CSXT Comments 9, June 5, 
2020.) UP contends that an appropriate-action requirement is 
unnecessary since it already has ``achieved a 95% accuracy rate.'' (UP 
Comments 7, June 5, 2020.) Additionally, BNSF, CN, NSR, and UP detail 
the actions they currently take to ensure invoice accuracy. (BNSF 
Comments 14-15, June 5, 2020; CN Comments 12-13, June 5, 2020; NSR 
Comments 9-10, June 5, 2020; UP Comments 6, June 5, 2020.)
    Upon considering the comments on this issue, the Board is persuaded 
that the proposed appropriate-action requirement should not be adopted 
in the final rule. Class I carriers convincingly argue that the 
proposed requirement lacks sufficient detail. Because there are many 
different reasonable ways to facilitate invoice accuracy, and because 
deciding whether a particular method is reasonable may depend on a 
carrier's individual systems and procedures for auditing invoices and 
potential future advancements in technology, the Board also declines to 
adopt the specific requirements proposed by rail users.
    For these reasons, the final rule adopted in this decision will not 
include the proposed appropriate-action requirement. Nevertheless, 
existing requirements, including those at 49 U.S.C. 10702 and 10746, 
continue to apply to carriers' demurrage invoicing practices. As the 
Board has made clear previously, it expects that all carriers will take 
reasonable actions to ensure the accuracy of their invoicing processes 
and that their demurrage charges are warranted. See Pol'y Statement, EP 
757, slip op. at 15-16 (emphasizing that the Board expects rail 
carriers to ``bill for demurrage only when the charges are accurate and 
warranted, consistent with the purpose of demurrage,'' and that rail 
users should be able to review and dispute charges without incurring 
undue expense). That being so, the Board strongly encourages carriers 
to adopt rail users' suggested actions where warranted and practicable, 
such as conducting regular audits, consulting with rail users when 
necessary, and providing additional information upon reasonable 
request. Class I carriers' invoicing protocols and procedures should be 
considered, in the context of all other relevant facts and 
circumstances, when determining whether demurrage charges are 
reasonable and enforceable in individual cases.

Other Requests for Board Action

    Rail users make a variety of other requests, including asking the 
Board to set a timeframe for Class I carriers to issue invoices, 
establish dispute resolution procedures, impose penalties for 
noncompliance with the rule, and apply the rule to accessorial charges. 
In addition, UP asks that the Board establish a separate process by 
which Class I carriers can obtain waivers from the final rule. The 
Board will discuss each of these requests below.
1. Time Limits for Invoice Issuance, Dispute Resolution Procedures, and 
Penalties
    Several rail users ask the Board to set time limits for invoice 
issuance, (see NCTA Comments 3-4, Nov. 6, 2019; FRCA Comments 5, Nov. 
6, 2019), take further action with respect to dispute resolution,\57\ 
and impose penalties for carriers that issue demurrage invoices that do 
not comply with the rule, (see FRCA Comments 5-6, Nov. 6, 2019; FRCA 
Comments 2, June 5, 2020). No Class I carrier responds directly to 
these requests.
---------------------------------------------------------------------------

    \57\ (See IWLA Comments 2, Nov. 4, 2019; ILTA Comments 3, Nov. 
6, 2019; IARW Comments 2, Nov. 6, 2019; NITL Comments 9-10, Nov. 6, 
2019; WCTL & SEC Comments 9, Nov. 6, 2019; NAFCA Reply 2, Dec. 6, 
2019; NGFA Reply 15, July 6, 2020.)
---------------------------------------------------------------------------

    The Board will not pursue these requests at this time. The Board 
notes that, by separate decision, it provided guidance on the general 
principles it expects to consider when evaluating the reasonableness of 
carriers' invoicing timeframes in future cases and discussed requests 
to establish additional dispute resolution procedures.\58\ See Pol'y 
Statement, EP 757, slip op. at 16 n.50, 17. With respect to the issue 
of penalties, the Board

[[Page 17748]]

expects that Class I carriers will make a concerted effort to comply 
with the requirements of the rule and finds that it is premature to 
address specific penalties for non-compliance at this time.\59\
---------------------------------------------------------------------------

    \58\ Parties currently have access to mediation, arbitration, 
and assistance through the Board's Rail Customer and Public 
Assistance program, which can be reached by telephone at 202-245-
0238 or email at [email protected], to resolve demurrage disputes.
    \59\ Violating a regulation or order of the Board could subject 
a carrier to appropriate remedial action. See, e.g., 49 U.S.C. 
11701, 11704, 11901.
---------------------------------------------------------------------------

2. Accessorial Charges
    NAFCA, AM, and NGFA ask the Board to apply the minimum information 
requirements to accessorial charges. (NAFCA Comments 2, Nov. 6, 2019; 
AM Comments 7, Nov. 6, 2019; NGFA Comments 2, June 5, 2020.) Class I 
carriers did not comment on this issue.
    The Board declines to extend the final rule to accessorial charges 
at this time. There are many kinds of accessorial charges and some, 
such as those imposed for weighing rail cars or requests for special 
trains, do not serve the same efficiency-enhancing purpose as 
demurrage. In their comments, rail users do not identify any specific 
accessorial charges to which the minimum information requirements 
should apply, or otherwise justify the extension of the final rule to 
accessorial charges generally. The Board encourages Class I carriers to 
provide the minimum information for those accessorial charges designed 
to enhance the efficient use of rail assets to the extent practicable. 
Should sufficient evidence be presented in the future that invoicing 
issues are arising with respect to specific accessorial charges, the 
Board can revisit this issue and propose any warranted modifications to 
the rule.
3. Waivers
    UP requests that, if the Board adopts minimum information 
requirements, then it also establish a process whereby carriers could 
obtain waivers from the rule by ``attesting that either all of the 
required information is provided to customers or explain why a 
particular data set is not provided or unavailable.'' (UP Comments 7, 
June 5, 2020.) UP asserts that this process would need to take place 
prior to the final rule's effective date so that carriers know whether 
they need to reprogram their systems. (Id.)
    NGFA objects to this suggestion, arguing that UP's waiver idea is 
impractical since it would require extensive Board monitoring to ensure 
that carriers' online platforms do not become noncompliant after 
waivers had been granted. (NGFA Reply 14-15, July 6, 2020.)
    The Board declines to adopt UP's proposal. Pursuant to 49 CFR 
1110.9, ``[a]ny person may petition the Board for a permanent or 
temporary waiver of any rule,'' and UP fails to explain why the Board's 
established waiver process is not sufficient to address its concerns. 
Furthermore, absent unique circumstances, the Board does not anticipate 
that the waiver process would be used to allow Class I carriers to 
provide the minimum information by means other than on or with an 
invoice as described above.

Time Frame for Compliance

    Several Class I carriers request specific amounts of time to comply 
with the final rule. NSR asks for a minimum of three months to complete 
its reprogramming, and KCS requests at least six months. (NSR Comments 
1, Nov. 6, 2019; KCS Comments 6-7, Nov. 6, 2019.) CSXT contends that if 
it is required to implement a software redesign ``sooner than nine 
months from the Board's decision,'' it will need to delay or 
reprioritize current projects. (CSXT Comments 7-8, June 5, 2020.) CP 
likewise states that it could comply within six months but requests at 
least one year to ``minimize disruption to existing projects and allow 
CP to prioritize its use of its resources appropriately.'' (CP Comments 
6, June 5, 2020.)
    The Board will allow Class I carriers until October 6, 2021, to 
provide the minimum information on or with demurrage invoices and 
comply with the machine-readable data requirement, as this timeframe 
allows Class I carriers a significant amount of time for reprogramming 
while also ensuring that rail users can benefit from improved demurrage 
invoicing practices without extended delay.

Exclusion of Class II and Class III Carriers

    In the NPRM, the Board explained that it did not propose to require 
Class II and Class III carriers to comply with the rule because the 
demurrage issues raised by stakeholders before the Board predominantly 
pertained to Class I carriers and compliance costs would be more 
difficult for smaller carriers. NPRM, EP 759, slip op. at 10. The Board 
invited comment on the proposed exclusion of Class II and Class III 
carriers. Id.
    Although some rail users recognize that demurrage issues most 
frequently involve Class I carriers, (see AFPM Comments 8, Nov. 6, 
2019; ISRI Comments 10, Nov. 6, 2019), several express concerns about 
excluding Class II and Class III carriers,\60\ particularly those with 
larger, more sophisticated operations, (see FRCA Comments 5, Nov. 6, 
2019; AFPM Comments 8, Nov. 6, 2019). ISRI urges the inclusion of Class 
II and Class III carriers for uniformity across the industry, (see ISRI 
Comments 10, Nov. 6, 2019; ISRI Comments 10-11, June 5, 2020), and 
others fear that Class I carriers will seek to evade the rule by 
tasking Class II and Class III carriers with demurrage invoicing where 
possible, (see NITL Comments 10, Nov. 6, 2019; AF&PA Comments 10, Nov. 
6, 2019). ILTA acknowledges that Class II and Class III carriers have 
fewer resources to comply with the rule but argues that small carriers 
should nonetheless be required to comply since small rail users must 
pay demurrage charges. (ILTA Comments 4, June 4, 2020.) Some rail users 
suggest that the Board should apply the rule to all carriers and grant 
waivers on a case-by-case basis to accommodate the smallest carriers. 
(NITL Comments 10, Nov. 6, 2019; AF&PA Comments 10, Nov. 6, 2019; AM 
Reply 5-6, Dec. 6, 2019.) Others suggest that the Board exclude some or 
all Class III carriers from the rule, but not Class II carriers. (AFPM 
Comments 8, Nov. 6, 2019 (exclude all Class III carriers, but not Class 
II carriers); FRCA Comments 5, Nov. 6, 2019 (require Class II carriers 
and Class III carriers affiliated with large holding companies to 
comply).) \61\
---------------------------------------------------------------------------

    \60\ (See FRCA Comments 5, Nov. 6, 2019; AFPM Comments 8, Nov. 
6, 2019; Barilla Comments 3, Nov. 6, 2019; CPC Comments 5, Nov. 6, 
2019; IWLA Comments 3, June 5, 2020.)
    \61\ As the Board stated in the decision adopting the direct-
billing final rule, Demurrage Billing Requirements, EP 759, slip op. 
at 14 n.29 (STB served Apr. 30, 2020), it is unclear whether some 
comments on this issue are intended to address exclusion of Class II 
and III carriers from the minimum information requirements aspect of 
the rule, the direct-billing aspect, or both. For completeness, all 
potentially applicable comments are addressed both here and in the 
decision adopting the direct-billing final rule.
---------------------------------------------------------------------------

    ASLRRA supports the Board's proposal to exclude Class II and Class 
III carriers. (ASLRRA Comments 3, Nov. 6, 2019; ASLRRA Reply 4, July 6, 
2020.) It asserts that more than half of small carriers operate as 
handling line carriers and, as such, do not always receive all of the 
information the Board would propose to include in the minimum 
information requirements from connecting Class I carriers. (ASLRRA 
Comments 3, Nov. 6, 2019.) ASLRRA further contends that rail users' 
proposed additions ``would place an insurmountable burden on [small 
rail carriers].'' (ASLRRA Reply 4, Dec. 6, 2019.) ASLRRA argues that 
the suggestion that small carriers could file

[[Page 17749]]

for individual waivers is unworkable since the waiver process would be 
too expensive and time-consuming for small carriers with limited 
resources. (Id. at 7.) ASLRRA also dismisses rail users' concerns that 
Class I carriers would assign demurrage invoicing to small carriers to 
avoid the rule, arguing that Class I carriers will not ``want to cede 
the control of their operations or practices to others or the 
compensation they receive for the misuse of their rail assets.'' (Id. 
at 8.)
    Nothing in this record undercuts the Board's initial view that the 
demurrage issues raised by stakeholders in Oversight Hearing on 
Demurrage & Accessorial Charges, Docket No. EP 754, predominantly 
pertain to Class I carriers. See NPRM, EP 759, slip op. at 10, 11. Nor 
do the comments provide a basis for concluding that Class I carriers 
will seek to avoid the rule by assigning their demurrage invoicing to 
small carriers.\62\ The case-by-case waiver approach for Class II and 
III carriers suggested by some rail users could be impractical and 
unduly burdensome for small carriers (and may be problematic for some 
Class II carriers, where there is a range of capabilities). For these 
reasons, the Board will not adopt the proposals to make Class II 
carriers, and, under some proposals, certain Class III carriers, 
subject to the rule. The Board does, however, strongly encourage Class 
II and Class III carriers to comply with the rule to the extent they 
are able to do so.\63\
---------------------------------------------------------------------------

    \62\ Should sufficient evidence be presented in the future that 
Class I carriers are attempting to avoid the rule by assigning their 
demurrage claims processing to small connecting carriers, the Board 
can revisit this issue and propose any warranted modifications to 
the rule.
    \63\ Additionally, KCS requests that the Board exclude it from 
the minimum information requirements, along with Class II and Class 
III carriers. (KCS Comments 6, Nov. 6, 2019.) The Board declines to 
do so since KCS has not demonstrated that the demurrage issues 
raised by stakeholders in this proceeding and Docket No. EP 754 do 
not pertain to its demurrage practices. Moreover, the Board does not 
have the same concerns regarding the compliance costs for Class I 
carriers, including KCS, as it does for Class II and Class III 
carriers.
---------------------------------------------------------------------------

Conclusion

    Consistent with this decision, the Board adopts a final rule that 
requires Class I carriers to include certain minimum information on or 
with demurrage invoices and provide machine-readable access to the 
minimum information. The final 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. 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). 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).
    As discussed above, the final rule will apply only to Class I 
carriers. Accordingly, the Board again certifies under 5 U.S.C. 605(b) 
that this rule would not have a significant economic impact on a 
substantial number of small entities as defined by the RFA.\64\ 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.
---------------------------------------------------------------------------

    \64\ For the purpose of RFA analysis, the Board defines a 
``small business'' as only including those rail carriers classified 
as Class III 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 ($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 ($504,803,294 when adjusted for 
inflation using 2019 data). The Board calculates the revenue 
deflator factor annually and publishes the railroad revenue 
thresholds on its website. 49 CFR 1201.1-1; Indexing the Annual 
Operating Revenues of R.Rs., EP 748 (STB served June 10, 2020).
---------------------------------------------------------------------------

Paperwork Reduction Act

    In this proceeding, the Board is modifying an existing collection 
of information that is currently approved by the Office of Management 
and Budget (OMB) under OMB Control No. 2140-0021. 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 1320.11, regarding: (1) 
Whether the collection of information, as modified, 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 estimated in the NPRM that the proposed requirements for 
minimum information to be included on or with Class I carriers' 
demurrage invoices would add a total one-time hourly burden of 280 
hours (93.3 hours per year as amortized over three years or 40 hours 
per respondent \65\) because, in most cases, those carriers would 
likely need to modify their information technology systems to implement 
some or all of the proposed changes.\66\ NPRM, EP 759, slip op. at 13. 
In response to comments received from CSXT and CN that this estimate 
was understated, the Board increased the estimate in the SNPRM to 560 
hours (186.6 hours per year as amortized over three years or 80 hours 
per respondent), which included the time Class I carriers would need to 
undertake the software redesign necessary to incorporate both the 
proposed minimum information discussed in the NPRM and the proposed 
additions discussed in the SNPRM.\67\ SNPRM, EP 759, slip op. at 14.
---------------------------------------------------------------------------

    \65\ There are seven Class I carrier respondents.
    \66\ The Board also provided an hourly burden estimate for the 
proposal that Class I carriers directly bill the shipper for 
demurrage when the shipper and warehouseman agree to that 
arrangement and so notify the rail carrier. NPRM, EP 759, slip op. 
at 13. Comments pertaining to this hourly burden estimate were 
addressed in a separate decision. See Demurrage Billing 
Requirements, EP 759, slip op. at 16-17 (STB served Apr. 30, 2020).
    \67\ In the NPRM, the Board estimated that the proposed 
requirement that Class I carriers take appropriate action to ensure 
that demurrage charges are accurate and warranted would add a total 
one-time hourly burden of 560 hours (186.6 hours per year as 
amortized over three years or 80 hours per respondent) because Class 
I carriers would likely need to establish or modify appropriate 
demurrage invoicing protocols and procedures. NPRM, EP 759, slip op. 
at 13. In the SNPRM, the Board increased this estimate to 840 hours 
(280 hours per year as amortized over three years or 120 hours per 
respondent). SNPRM, EP 759, slip op. at 14. Because the final rule 
adopted in this decision will not include the proposed appropriate-
action requirement, the Board's estimate of 840 hours (280 hours per 
year as amortized over three years or 120 hours per respondent) to 
establish or modify appropriate demurrage invoicing protocols and 
procedures will not be included in the final estimate.

---------------------------------------------------------------------------

[[Page 17750]]

    In response to the SNPRM, CSXT filed comments addressing the 
Board's PRA burden estimates. First, CSXT reiterates its estimate 
offered in response to the NPRM that it will take nine months to 
implement a program redesign to include the minimum information on or 
with demurrage invoices. (CSXT Comments 6-7, June 5, 2020.) However, 
CSXT indicates that ``its nine[-]month estimate is not limited to 
actual programming time.'' (Id. at 8.) Instead, CSXT explains that its 
estimate includes scheduling delays due to other priority software 
development projects in its technology pipeline and programming time 
for other unrelated software development projects. (Id.) Thus, CSXT's 
nine-month estimate is not an actual estimate of the time that Class I 
carriers need to comply with the rule. Without more support, CSXT does 
not justify its nine-month estimate.\68\
---------------------------------------------------------------------------

    \68\ CSXT also asserts that it would need to ``engage an outside 
vendor, adding even further cost and time'' to provide the minimum 
information on demurrage invoices, (CSXT Comments 8, June 5, 2020), 
but this argument lacks the specificity to support additional burden 
hours or a non-hourly dollar amount for additional costs.
---------------------------------------------------------------------------

    Second, CSXT argues that the Board should include additional 
burdens under two potential scenarios. First, if the Board requires 
``that all demurrage information be downloadable to a single machine-
readable file, or be housed in a central location within ShipCSX,'' 
then CSXT estimates that it would need approximately three months (or 
955 hours). Second, if the Board requires CSXT ``[t]o include all of 
the proposed data fields in the existing ShipCSX demurrage module,'' 
then CSXT estimates it would need 1,680 hours, over a period of four to 
five months ``due to the multiple data programmers, sources, and 
systems involved.'' (Id. at 7-8 (footnote omitted).) \69\
---------------------------------------------------------------------------

    \69\ Additionally, CSXT estimates that it would need only two to 
three days (80 hours or less) of programming time if Class I 
carriers have full discretion to decide how to present the minimum 
information, (CSXT Comments 7 & n.16, June 5, 2020), but the final 
rule does not allow this level of discretion.
---------------------------------------------------------------------------

    CSXT's estimates of three months (955 hours) and four to five 
months (1,680 hours) appear to encompass the time CSXT would need to 
provide machine-readable data in various specific formats or in a 
central location. Although the final rule will not mandate any 
particular format for machine-readable data and, instead, will allow 
Class I carriers the discretion to select how to provide access to 
machine-readable data, the Board recognizes CSXT's stated concern that 
it may need more than 80 hours to modify its invoicing systems to 
include the required minimum information and provide machine-readable 
access to such information. Accordingly, the Board will increase its 
estimate from 560 hours (186.6 hours per year as amortized over three 
years or 80 hours per respondent) to 1,120 hours (373.3 hours per year 
as amortized over three years or 160 hours per respondent).
    No other carriers commented on the Board's estimates.
    This modification to an existing collection, along with CSXT's 
comment and the Board's response, 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 non-major, as defined by 5 U.S.C. 804(2).

List of Subjects in 49 CFR Part 1333

    Penalties, Railroads.

    It is ordered:
    1. The Board adopts the final rule as set forth in this decision. 
Notice of the final rule will be published in the Federal Register.
    2. The final rule is effective on October 6, 2021, as set forth in 
this decision.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.

    Decided: March 30, 2021.
    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board amends part 1333 of title 49, chapter X, of the 
Code of Federal Regulations as follows:

PART 1333--DEMURRAGE LIABILITY

0
1. The authority citation for part 1333 continues to read as follows:

    Authority:  49 U.S.C. 1321, 10702, and 10746.


0
2. Add Sec.  1333.4 to read as follows:


Sec.  1333.4  Information Requirements for Demurrage Invoices

    The following information shall be provided on or with any 
demurrage invoices issued by Class I carriers:
    (a) The billing cycle covered by the invoice;
    (b) The unique identifying information (e.g., reporting marks and 
number) of each car involved;
    (c) The following information, where applicable:
    (1) The date the waybill was created;
    (2) The status of each car as loaded or empty;
    (3) The commodity being shipped (if the car is loaded);
    (4) The identity of the shipper, consignee, and/or care-of party, 
as applicable; and
    (5) The origin station and state of the shipment;
    (d) The dates and times of:
    (1) Original estimated arrival of each car, as generated promptly 
following interchange or release of shipment to the invoicing carrier 
and as based on the first movement of the invoicing carrier;
    (2) Receipt of each car at the last interchange with the invoicing 
carrier (if applicable);
    (3) Actual placement of each car;
    (4) Constructive placement of each car (if applicable and different 
from actual placement);
    (5) Notification of constructive placement to the shipper or third-
party intermediary (if applicable);
    (6) Each car ordered in (if applicable) (i.e., the date and time 
demurrage first stops accruing with respect to a closed-gate facility);
    (7) release of each car; and
    (e) The number of credits and debits attributable to each car (if 
applicable).


0
3. Add Sec.  1333.5 to read as follows:


Sec.  1333.5  Machine-Readable Access to Information Required for 
Demurrage Invoices

    In addition to providing the minimum information on or with 
demurrage invoices, Class I carriers shall provide machine-readable 
access to the information listed in Sec.  1333.4. For purposes of this 
part, `machine-readable' means data in an open format that can be 
easily processed by computer without human intervention while ensuring 
no semantic meaning is lost. An `open format' is a format that is not 
limited to a specific software program and not subject to restrictions 
on re-use.

[FR Doc. 2021-07000 Filed 4-5-21; 8:45 am]
BILLING CODE 4915-01-P