[Federal Register Volume 86, Number 226 (Monday, November 29, 2021)]
[Notices]
[Pages 67781-67782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25916]


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SURFACE TRANSPORTATION BOARD

[Docket No. EP 768]


Petition for Rulemaking To Adopt Rules Governing Private Railcar 
Use by Railroads

    On July 26, 2021, the North America Freight Car Association, The 
National Grain and Feed Association (NGFA), The Chlorine Institute, and 
The National Oilseed Processors Association (collectively, Petitioners) 
filed a petition for rulemaking proposing that the Board adopt 
regulations, pursuant to its car service authority under 49 U.S.C. 
11122(a)(2), that would allow private railcar providers \1\ to assess a 
``private railcar delay charge'' when a private freight car does not 
move for more than 72 consecutive hours at any point between the time 
it is ``released for transportation'' and the time it is ``either 
constructively placed or actually placed at the private railcar 
provider's facility or designated location.'' (Pet. 1, 23-24.) \2\
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    \1\ Petitioners define a ``private railcar provider'' as ``a 
shipper, receiver, or other party who owns or leases a private 
railcar and provides it to a railroad for transportation.'' (Pet. 
23.)
    \2\ Constructive placement occurs when a rail car is available 
for delivery but cannot actually be placed at the receiver's 
destination because of a condition attributable to the receiver, 
such as lack of room on the tracks in the receiver's facility. See 
Pol'y Statement on Demurrage & Accessorial Rules & Charges, EP 757, 
slip op. at 8 n.22 (STB served Apr. 30, 2020).
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    The Board received replies to the petition from the Association of 
American Railroads (AAR), CSX Transportation, Inc. (CSXT), Union 
Pacific Railroad Company (UP), the Institute for Scrap Recycling 
Industries, Inc. (ISRI), a group of shipper associations including the 
American Chemistry Council, The Fertilizer Institute, and the National 
Industrial Transportation League (collectively, Joint Shippers), the 
National Association of Chemical Distributors (NACD), the National Coal 
Transportation Association (NCTA), the Private Railcar Food and 
Beverage Association (PRFBA), American Fuel & Petrochemical 
Manufacturers (AFPM), the Freight Rail Customer Alliance (FRCA), and 
the Canadian Oilseed Processors Association (COPA),\3\ as well as 
notices of intent to participate from NGFA and the American Short Line 
and Regional Railroad Association. AAR, CSXT, and UP oppose the 
petition, while ISRI, Joint Shippers, NACD, NCTA, PRFBA, AFPM, FRCA, 
and COPA support it.
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    \3\ Replies to the petition were due by August 30, 2021, and 
COPA's reply was filed after that date. In the interest of having a 
more complete record, however, COPA's reply will be accepted into 
the record.
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    On September 10, 2021, Petitioners submitted a surreply to the 
replies, along with a motion for leave to file. On September 23, 2021, 
AAR and UP submitted replies to Petitioners' motion for leave to file. 
AAR states that it does not object to the Board accepting Petitioners' 
surreply into the record, as long as it also accepts AAR's ``brief 
rejoinder,'' (AAR Reply 1, Sept. 23, 2021), and UP states that it takes 
no position on Petitioners' motion for leave but asks the Board to 
reject certain claims Petitioners made in their surreply, (UP Reply 1, 
Sept. 23, 2021).\4\
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    \4\ Under 49 CFR 1104.13(c), a reply to a reply is not 
permitted. However, in the interest of a more complete record, the 
Board will grant Petitioners' motion for leave. See City of 
Alexandria--Pet. for Declaratory Ord., FD 35157, slip op. at 2 (STB 
served Nov. 6, 2008) (allowing a reply to a reply ``[i]n the 
interest of compiling a full record'').
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    Petitioners contend that the proposed regulations are necessary to 
encourage the efficient use of private freight cars, (Pet. 8-10), and 
to compensate private railcar providers for the costs they incur when 
carriers use private freight cars inefficiently, (id. at 12-13). In 
response, UP and AAR claim that the Board lacks the statutory authority 
under section 11122(a)(2) to adopt the proposed

[[Page 67782]]

regulations. (UP Reply 2-3; AAR Reply 3-6.) \5\ AAR, CSXT, and UP 
contend, moreover, that the proposed regulations are unnecessary 
because carriers have sufficient incentives to move cars efficiently, 
as delayed cars hinder operations and reduce revenue. (CSXT Reply 3-4; 
UP Reply 7-8, Aug. 30, 2021; AAR Reply 8-9, Aug. 30, 2021.) They also 
argue that the proposed regulations will have a negative impact on the 
overall efficiency of the rail network by incentivizing carriers to 
move private freight cars inefficiently to avoid the charges and by 
reducing cooperation between carriers during periods of network stress. 
(CSXT Reply 6; UP Reply 9, Aug. 30, 2021; AAR Reply 16, Aug. 30, 2021.) 
Other respondents contend that the proposed regulations would provide 
appropriate financial incentives for Class I carriers to use private 
freight cars more efficiently, (NCTA Reply 1-2; PRFBA Reply 1; FRCA 
Reply 1), and offer reciprocity for demurrage charges (ISRI Reply 4; 
NACD Reply 1; AFPM Reply 2; COPA Reply 1-2). Furthermore, Joint 
Shippers ask the Board to solicit comments on how the proposed 
regulations would be implemented, including whether carriers would be 
responsible for monitoring private freight car delays and crediting 
amounts owed under the proposed regulations against their demurrage 
invoices. (Joint Shippers Reply 5.)
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    \5\ Additionally, CSXT states that it joins AAR's comments. 
(CSXT Reply 2.)
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    Petitioners' proposal and the responses to date raise important 
issues of interest to the Board. Therefore, to further consider 
Petitioners' proposal and the responses, the Board will open a 
proceeding. Procedures for further public comment will be established 
in a subsequent decision.
    It is ordered:
    1. Petitioners' motion for leave to file a surreply is granted.
    2. Petitioners' petition is granted to the extent that it requests 
that the Board open a proceeding.
    3. Notice of this decision will be published in the Federal 
Register.
    4. This decision is effective on its service date.

    Decided: November 22, 2021.

    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz.
Eden Besera,
Clearance Clerk.
[FR Doc. 2021-25916 Filed 11-26-21; 8:45 am]
BILLING CODE 4915-01-P