[Federal Register Volume 91, Number 6 (Friday, January 9, 2026)]
[Proposed Rules]
[Pages 945-952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00241]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1144
[Docket No. EP 788]
Eliminating Regulatory Barriers to Competition: Review of Part
1144
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board proposes to repeal its
regulations on ``Intramodal Rail Competition,'' which implement the
agency's statutory authority to prescribe reciprocal switching
agreements, through routes, and through rates. The approach set out in
the regulations, which narrows the Board's statutory discretion, may no
longer be appropriate on an industrywide basis, and its repeal would
allow the Board to consider the prescription of through routes, through
rates, and reciprocal switching agreements on a case-by-case basis
under the applicable statutory standards.
DATES: Comments on this notice of proposed rulemaking are due by March
10, 2026. Reply comments are due by April 24, 2026.
ADDRESSES: Comments and replies may be filed with the Board either via
e-filing or in writing addressed to: Surface Transportation Board,
Attn: Docket No. EP 788, 395 E Street SW, Washington, DC 20423-0001. A
summary of the proposed rule and the proposed rule are available on the
Board's website at www.stb.gov and can be found by clicking ``Search
STB Records,'' selecting Dockets in the ``Search For'' menu, selecting
EP in the ``Docket Number'' menu and entering 788. Comments and replies
will also be posted to the Board's website.
FOR FURTHER INFORMATION CONTACT: Amy Ziehm, at (202) 918-5462. If you
require accommodation under the Americans with Disabilities Act, please
call (202) 245-0245.
SUPPLEMENTARY INFORMATION:
Background
Statutory History
Regulation of freight rail transportation in the United States is
governed by the Interstate Commerce Act, which was amended
substantially by the Railroad Revitalization and Regulatory Reform Act
of 1976 (the 4R Act), Public Law 94-210, the Staggers Rail Act of 1980
(Staggers), Public Law 96-448, and the ICC Termination Act of 1995
(ICCTA), Public Law 104-88. In the pre-Staggers era, the railroad
industry was characterized by ``open routing'' and ``rate
equalization,'' practices whereby through routes were created on
practically all possible combinations of railroad tracks between two
points (open routing) and where routes between the same two points--
including single-line routes--were offered at the same rate, without
regard to the actual cost (rate equalization). Balt. Gas & Elec. Co. v.
United States, 817 F.2d 108, 110 (D.C. Cir. 1987).\1\ The Board's
predecessor, the Interstate Commerce Commission (ICC), supported these
practices by using its statutory authority to prescribe and maintain
through routes and joint rates and by considering attempts by railroads
to lower the rate on one route as ``closing'' higher-priced through
routes between the same points (i.e., the ``commercial closing''
doctrine). Id. at 111. While some shippers enjoyed the choice of routes
and unified rates, made available by ``open routing'' and ``rate
equalization,'' many shippers began to oppose these practices, which on
many routes forced the payment of rates higher than those that might
have prevailed in a competitive environment. Id. Likewise, while some
smaller railroads benefited from the proliferation of through routes,
many suffered by their inability to lower rates on more efficient
routings and raise rates when their share of joint rates on through
routes did not cover variable costs and provide a fair rate of return.
Id.
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\1\ A ``through route,'' or ``interline service,'' refers to a
long-distance movement that is performed by two or more rail
carriers. The shipment is transferred from one carrier to another en
route between the point of origin and the final destination. Each
participating rail carrier performs a portion of the line haul and
earns a portion of the line-haul revenues. Baltimore Gas & Electric,
817 F.2d at 110.
Rail carriers typically charge either ``joint rates'' or
``proportional rates'' for interline service. A joint rate is a
single rate that applies to the entire movement, from the point of
origin to the final destination. The division of revenues under a
joint rate is determined in the first instance by the rail carriers,
subject to division by the Board as provided for in 49 U.S.C.
10705(b). In the case of proportional rates, each rail carrier
establishes a separate rate for its portion of the movement, based
on the carrier's participation in a through movement. Cent. Power &
Light Co. v. S. Pac. Transp. Co., 1 S.T.B. 1059, 1060, n.3 (1996). A
``through rate'' is a rate that applies to an entire origin-to-
destination movement, without regard to how many rail carriers are
involved in the movement. A joint rate and a proportional rate are
each a form of through rate.
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By the 1970s, the railroad industry had entered a state of
``financial crisis,'' Baltimore Gas & Electric, 817 F.2d at 111, with
low rate divisions and a proliferation of uneconomic routes as among
the ``major problems'' that led to its poor financial health, Standards
for Intramodal Rail Competition, EP 445, slip op. at 5 (ICC served July
7, 1983) (citing H.R. Rep. No. 96-1430, at 111 (1980)); see also H.R.
Rep. No. 96-1430, at 79 (``Earnings by the railroad industry are the
lowest of any transportation mode and are insufficient to generate
funds for necessary capital improvements.''). In response, Congress
enacted ``two major pieces of legislation of a generally deregulatory
thrust'': the 4R Act and Staggers. Baltimore Gas & Electric, 817 F.2d
at 112-13. As relevant here, each statute reduced the ICC's discretion
to deny or suspend the cancellations of through routes and joint
[[Page 946]]
rates and thus made such ``cancellations easier to obtain.'' Id. at
112-13.\2\
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\2\ In narrowing the ICC's ability to reject through route and
joint rate cancellations, these statutory reforms ``implicitly
modified prior regulatory barriers,'' like the commercial closing
doctrine, Baltimore Gas & Electric, 817 F.2d at 112, which the ICC
later abandoned, Standards for Intramodal Rail Competition, EP 445,
slip op. at 5 n.7. Ultimately, ICCTA repealed the statutory
provisions that governed cancellations of joint rates and through
routes. As explained by the Senate Committee on Commerce, Science,
and Transportation, those provisions had achieved their purpose of
allowing carriers an avenue of relief from unremunerative joint
rates and were rendered obsolete by ICCTA's elimination of most rail
tariffs. S. Rep. No. 176, 104th Cong., 1st Sess. (1995).
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Notwithstanding these statutory reforms, Congress retained the
agency's longstanding authority to prescribe through routes. Under 49
U.S.C. 10705(a)(1), the Board may prescribe a through route when ``it
considers [the through route] desirable in the public interest.'' 49
U.S.C. 10705(a)(1).\3\ Section 10705(a)(2) includes additional
guidelines when a prescribed through route would short haul a rail
carrier.\4\ In relevant part, the Board may prescribe such a through
route only when inclusion of those lines would make the through route
unreasonably long when compared with a practicable alternative that
could be established or when needed to provide ``adequate, and more
efficient or economic transportation.'' 49 U.S.C. 10705(a)(2). The
Board must give reasonable preference to the rail carrier originating
the traffic when prescribing through routes. 49 U.S.C. 10705(a).
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\3\ In determining the public interest under 49 U.S.C. 10705(a),
the agency has historically considered the interests of the general
public, including shippers, affected by the relevant movements as
well as the carriers participating in the routes, and has considered
factors including (but not limited to) the economy, efficiency, and
feasibility of the route; the practicability of the movement; the
impact the route has on all the parties involved; and whether the
route represents a departure from a well-established routing for the
traffic. See Canexus Chems. Canada L.P. v. BNSF Ry., NOR 42131, slip
op. at 9 (STB served Feb. 8, 2012). ``This is a test driven by the
facts and the record complied in [the] case.'' Id.
\4\ The prescription of a through route would ``short haul'' a
rail carrier if the carrier would be required to transfer the
shipment to another rail carrier without having used the full length
of its own track (or an affiliate's track) between the point of
origin and the final destination. See 49 U.S.C. 10705(a)(2).
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Moreover, out of recognition that the 4R Act and Staggers made
changes that would, ``if taken advantage of, dramatically change both
railroads' services and their pricing, [Staggers] offered new
protection'' by expanding the agency's discretion to prescribe
reciprocal switching agreements.\5\ Standards for Intramodal Rail
Competition, EP 445, slip op. at 6. As provided in section 11102(c),
the Board ``may require rail carriers to enter into reciprocal
switching agreements'' where the Board finds those agreements to be
``practicable and in the public interest'' \6\ or where those
agreements are ``necessary to provide competitive rail service.'' \7\
49 U.S.C. 11102(c). As the legislative history explained:
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\5\ The term ``reciprocal switching'' refers to transfers
between rail carriers that take place within the terminal area in
which the shipment originates or ends and that are incidental to a
line haul. Under a reciprocal switching agreement, the rail carriers
that serve a terminal area agree to undertake such transfers at the
shipper's election, subject to operating requirements that are
established through the agreement. The agreement promotes intramodal
competition by allowing participating rail carriers to offer line
haul service to/from shippers' facilities in the terminal area that
are not directly connected to that carrier's tracks. The switching
carrier (the carrier on whose tracks the shipper's facility is
located) earns a fee for performing the transfer but does not
participate in the line haul and therefore does not earn line-haul
revenues. See Reciprocal Switching for Inadequate Serv., EP 711
(Sub-No. 2) (STB served Apr. 30, 2024).
\6\ The ``practicable and in the public interest'' set forth in
section 11102(c) has been interpreted to require ``some actual
necessity or compelling reason,'' which has itself been interpreted
to require a ``finding of inadequate service by the incumbent rail
carrier.'' Grand Trunk Corp. v. STB, 143 F. 4th 741, 749, 751 (7th
Cir. 2025).
\7\ The agency has indicated that it would ``consider all types
of competition'' in determining whether an agreement is ``necessary
to provide competitive rail service'' under section 11102(c). Midtec
Paper Corp. v. Chi. & NW Transp. Co., 1 I.C.C.2d 362, 369 (1985).
The new railroad transportation policy established by this bill
emphasizes the need for increased intramodal and intermodal
competition, and section 203 [on reciprocal switching and other
forms of market entry] deals with intramodal competition among
railroads. . . . As the Government moves toward significantly less
regulation of the services offered by railroads, the Government
should encourage, rather than discourage, competition among
railroads. Competition among railroads, or at least the realistic
threat of competition, can serve as an important safeguard against
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inadequate service or unreasonably high prices.
S. Rep. No. 470, 96th Cong., 1st Sess. 41; see also H. Rep. No. 96-
1430, at 134.
Part 1144
The first several years after passage of Staggers witnessed a
``phenomenon of increasing cancellations of railroad routes and
rates.'' Standards of Intramodal Rail Competition, EP 445, slip op. at
1 n.3; see also id. at 9 (describing post-Staggers industry efforts to
cancel joint rates, restrict routings, and develop new rate programs
and noting that ``[a]s a general proposition, these actions comport[ed]
with the Staggers Act mandate''). Based on an assumption that rail
carrier activities limiting the application of joint rates and through
routes, and the use of existing market power, are ``anticompetitive per
se,'' the National Industrial Transportation League (NITL) requested
that the ICC propose regulations that would, among other things,
prohibit anticompetitive railroad cancellations of joint rates and
through routes and implement the provision authorizing the prescription
of reciprocal switching agreements. Id. at 1, 11. NITL did not offer
suggested regulations itself, and the ICC denied NITL's petition. Id.
at 15. The ICC emphasized that Staggers encourages the development of
more efficient routings and rates that reflect costs and competitive
conditions and that the through routing and reciprocal switching
provisions cannot ``be interpreted in the broad sense NITL seeks'' by
stating ``categorically which actions are lawful and which are not.''
Id. at 11-12. However, it also acknowledged that there ``will continue
to be uncertainties, dislocations, and problems for individual shippers
and carriers'' that may justify redress ``under existing remedies.''
Id. at 11. It explained that the ``existing statutory criteria require
case-by-case analysis of individual economic and competitive
circumstances in each case,'' and resolved to address ``such individual
wrongs'' based on an ``analysis of unique fact patterns [as] required
by the statute.'' Id. at 13.\8\
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\8\ The ICC also initiated an industry-wide study of changes
brought about by Staggers, noting that such an approach would be far
more useful than attempting to establish new standards through a
rulemaking, ``and in conjunction with ongoing adjudications, should
address the concerns expressed by many commenters.'' Id. at 14-15.
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Soon thereafter, NITL again asked the ICC to adopt regulations that
would provide standards for the cancellation of through routes and
joint rates, and the prescription of through routes, through rates, and
reciprocal switching. See Intramodal Rail Competition (Original 1144
NPRM), EP 445 (Sub-No. 1), slip op. at 1 (ICC served Mar. 27, 1985).
But this time, the Association of American Railroads (AAR) joined the
request, and the parties proposed specific regulations that they had
agreed upon in ``a good faith effort to accommodate the legitimate
interests of shippers and railroads.'' Id.\9\ The ICC noted that it was
encouraged by the proposed regulations as they were ``clear evidence
that traditional adversaries can reach a meeting of the minds on issues
important to both.'' Id. at 4. After providing notice and an
opportunity for
[[Page 947]]
comment, the ICC adopted the regulations proposed by NITL and AAR, with
some modification. See Intramodal Rail Competition (Original 1144 Final
Rule), 1 I.C.C.2d 822 (1985). As the agency explained, the adoption of
these regulations was ``responsive to two basic principles'': (i) that
the regulations be consistent with statutory requirements; and (ii)
that they ``be acceptable to as broad a section of the marketplace as
possible.'' Original 1144 NPRM, EP 445 (Sub-No. 1), slip op. at 4. The
ICC advanced the first principle by explaining how the proposed
regulations complied with statutory requirements then in effect, and
making certain modifications not at issue here, Original 1144 Final
Rule, 1 I.C.C.2d at 824-31, and it advanced the second principle by
``preserv[ing] to the maximum extent possible'' what had been proposed
by NITL and AAR, id. at 823.
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\9\ A subsequent joint petition was filed by the AAR and the
Chemical Manufacturers Association (CMA) that clarified the
negotiated NITL-AAR agreement. Original 1144 Final Rule, 1 I.C.C.2d
at 822.
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NITL and AAR's proposed regulations included a number of provisions
related to the suspension and investigation of joint rate and through
routes cancellations, which the Board subsequently removed by a direct-
to-final rule after ICCTA removed the underlying statutory authority.
See Removal of Joint Rate Cancellation Reguls., 67 FR 61290 (Sept. 30,
2002); see also supra note 2. As relevant here, NITL and AAR also
proposed--and the Board adopted--a provision providing for the
prescription of a through rate, joint rate, or reciprocal switching
agreement only where ``necessary to remedy or prevent an act contrary
to the competition policies of 49 U.S.C. 10101 or which is otherwise
anticompetitive.'' Compare Original 1144 NPRM, EP 445 (Sub-No. 1), slip
op. at 8 with Original 1144 Final Rule, 1 I.C.C.2d at 841 and 49 CFR
1144.2(a)(1). The ICC later explained that the ``essential questions''
under this anticompetitive conduct test are (i) whether the railroad
has used its market power to extract unreasonable terms on through
movements; or (ii) whether because of the railroad's monopoly position
it has shown a disregard for the shipper's needs by rendering
inadequate service. Midtec Paper Corp. v. Chi. & N.W. Transp. Co., 3
I.C.C.2d 171, 181 (1986), aff'd sub nom. Midtec Paper Corp. v. United
States, 857 F.2d 1487 (D.C. Cir. 1988).\10\ By adopting the proposed
regulations, the ICC ``narrow[ed] the agency's discretion under section
1110[2]'' to grant relief to only those circumstances where there is a
``reasonable fear of anticompetitive behavior.'' Midtec, 857 F.2d at
1500.
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\10\ The agency explained in Midtec that it would consider
``classical categories of competitive abuse: foreclosure; refusal to
deal; price squeeze; or any other recognizable forms of
monopolization or predation,'' as well as whether there was any
``evidence of abuses'' under the competitive standards of the Rail
Transportation Policy (RTP), ``including inadequate service or
excessive prices.'' Midtec, 3 I.C.C.2d at 173-74. In the latter
category of cases, to show entitlement to relief under part 1144,
evidence of market power is not enough; rather, the petitioner must
demonstrate that the carrier abused that market power through
affirmative, anticompetitive conduct. See Shenango Inc. v. Pitt.,
Chartiers & Youghiogheny Ry., 5 I.C.C.2d 995, 1001 (1989) (``[A]
finding of market dominance does not show that the carrier has
behaved anticompetitively, nor is it grounds in itself for imposing
a competitive access remedy . . . . Rather, it relates to the
structure of the market in which the carrier operates and the
potential for market abuse power, not to the carrier's actual
conduct.''); Vista Chem. Co. v. Atchison, Topeka & Santa Fe Ry., 5
I.C.C.2d 331, 338 (1989) (explaining that evidence of uncompetitive
rates is not ``dispositive,'' but ``serves as a background against
which to evaluate the defendant's conduct and with which to assess
the likelihood of future anticompetitive conduct''); Midtec, 3
I.C.C.2d at 181 (same); see also Golden Cat Div. of Ralston Purina
Co. v. St. Louis Sw. Ry., NOR 41550, slip op. at 9 (STB served Apr.
25, 1996) (asking whether the carrier has ``used any competitive
market power over [the shipper] to its own advantage through the
provision of inadequate service'').
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NITL and AAR's proposed regulations further included a so-called
``standing'' requirement--also adopted by the ICC--providing that a
shipper or carrier seeking a through route, through rate, or reciprocal
switching prescription demonstrate that it has utilized or would
utilize the through route, through rate, or reciprocal switching to
meet a significant portion of its transportation needs or move a
significant portion of traffic. Compare Original 1144 NPRM, EP 445
(Sub-No. 1), slip op. at 8, with Original 1144 Final Rule, 1 I.C.C.2d
at 841, and 49 CFR 1144.2(a)(1). This provision was responsive to a
statutory requirement--since removed--prohibiting the ICC from
suspending cancellation of a through route and/or a joint rate unless
it appeared that failure to suspend would cause substantial injury to
the protestant. Intramodal Rail Competition, 1 I.C.C.2d at 825-26, 830;
see also supra note 2. And, finally, with respect to the prescription
of through routes, joint rates, and reciprocal switching, NITL and
AAR's agreement provided that (i) the agency would not consider product
competition, (ii) the railroad would have to prove the existence of
geographic competition by clear and convincing evidence (if it ``wishes
to rely in any way on geographic competition''), and (iii) overall
revenue adequacy of the defendant railroad shall not be a basis for
denying a prescription that is necessary to remedy or prevent an
anticompetitive act. See Original 1144 NPRM, EP 445 (Sub-No. 1), slip
op. at 9. The ICC adopted these provisions with minimal change,
Original 1144 Final Rule, 1 I.C.C.2d at 841, and to them added (based
on an alternative proposal by a group of regional railroads, Railroads
Against Monopoly) that any such prescription proceedings would be
conducted on an expedited basis, Original 1144 Final Rule 1 I.C.C.2d at
841 and 49 CFR 1144(b)(4).
On judicial review, the D.C. Circuit found that, overall, part 1144
reflected a ``reasonable accommodation of the conflicting policies set
out'' at 49 U.S.C. 10101. Baltimore Gas & Electric, 817 F.2d at 115.
The court noted how the rule accommodated railroads' needs in avoiding
participation in unremunerative and inefficient through routes with
shippers' needs in setting aside anticompetitive through route
cancellations and ``preserving and enhancing'' competition, while ``at
the same time restrict[ing] the circumstances'' under which agency
would order a through route, joint rate, or reciprocal switching
prescription. Id. The Court also rejected an argument that the ICC
unlawfully delegated its authority to create regulations,
notwithstanding that they ``differ[ed] little from the private parties'
proposal.'' Id. at 117.
While concluding that part 1144 (as it was then structured)
reflected a permissible accommodation of the ``conflicting'' policies
set out in the agency's governing statute, the court left open the
possibility that the agency could reach a different and equally
permissible balance. Id. at 115 (noting that not all policies ``point
in the same direction''). A subsequent decision by the D.C. Circuit
expressly confirmed that adoption of the anticompetitive conduct test
was not compelled by the statute but was instead the product of a
permissible ``narrow[ing of] the agency's discretion.'' Midtec, 857
F.2d at 1500.
Criticisms of Part 1144
In the 40 years since its adoption, part 1144 has been rarely
invoked, and the agency has never issued a prescription under its
framework. For years, shippers and shipper groups such as NITL--
collectively representing agricultural, manufacturing, energy, and
other businesses that use rail, many of which are small and medium-
sized with limited to no transportation choice--have argued that part
1144's requirement of anticompetitive conduct, as interpreted by the
Board, has ``set an unrealistically high bar for shippers to obtain''
competitive access. E.g., Pet. for Rulemaking to Adopt Revised
Switching Rules (2016 Switching NPRM), EP 711 et
[[Page 948]]
al., slip op. at 8 & n.8 (STB served July 27, 2016) (summarizing
comments from the National Grain and Feed Association, the Agricultural
Retailers Association, the National Chicken Council, the National
Association of Wheat Growers, the National Council of Farmer
Cooperatives, the National Corn Growers Association, E.I. du Pont de
Nemours & Co., Consumers United for Rail Equity, and the U.S.
Department of Agriculture); NITL Pet. for Rulemaking 16 (July 7, 2011),
EP 711.\11\ In the 2016 Switching NPRM, the Board emphasized that the
``sheer dearth of cases'' brought in the three decades since the
Original 1144 Final Rule was propounded ``despite continued shipper
concerns about competitive options and quality of service, suggests
that part 1144 and Midtec have effectively operated as a bar to relief
rather than as a standard under which relief could be granted.'' 2016
Switching NPRM, EP 711, slip op. at 8-9. Noting that the constrained
approach taken in the part 1144 regulations emerged from ``decades of
inefficiencies and serial bankruptcies,'' the Board cited the ``many
changes that have occurred in the rail industry'' since then,
including, the improved economic health of the railroad industry, the
increased consolidation of Class I railroads, increased productivity
and technological advances, and other reasons. Id. at 9.\12\ The Board
stated that the anticompetitive conduct standard makes ``less sense in
today's regulatory and economic environment.'' Id.\13\
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\11\ While the 2016 Switching NPRM focused on reciprocal
switching, the Board proposes here to revoke 49 CFR part 1144 in its
entirety. As explained further below, parties are encouraged to
comment on whether the Board should limit its revocation only to
those aspects of 49 CFR part 1144 that pertain to reciprocal
switching.
\12\ The Board categorizes rail carriers into three classes:
Class I, Class II, and Class III, based on each carrier's annual
operating revenue. Class I rail carriers generate the most revenue.
At present, there are six Class I carriers. Each operates across a
vast territory. Most areas of the United States are served by at
most two Class I carriers.
\13\ Senators have also told the Board that ``the current rules
are not working'' and urged the Board to revise its rules to make
reciprocal switching more available ``so that freight rail shippers
have more options and better service.'' Comment of Senators Tammy
Baldwin, David Vitter, and Al Franken (Oct. 10, 2014), EP 711.
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In the 2016 Switching NPRM, the Board proposed new regulations to
govern the prescription of reciprocal switching orders. Under the
proposed regulations, the petitioner would no longer need to show
anticompetitive conduct or that it has or would use the prescribed
switch for a significant amount of traffic. 2016 Switching NPRM, EP
711, slip op. at 9, 26 (``[T]he Board proposed to reverse that policy''
of a ``competitive abuse standard.'') With regard to the ``necessary to
provide competitive rail service'' standard, the Board proposed
prescribing reciprocal switching based on a lack of intermodal and
intramodal competition. Id. at 41-42.\14\ Rail carriers who opposed the
proposed rule argued that Congress authorized the Board to compel
switching only upon a showing of anticompetitive behavior and, even if
not, removing that requirement would be misguided as a matter of policy
because it ``would drive rates down to the point of undermining
carriers' ability to raise sufficient capital'' and lead to
``economically inefficient'' switching arrangements. Reciprocal
Switching, EP 711 (Sub-No. 1), slip op. at 5 (STB served Dec. 28,
2021). Other commenters--including NITL and the American Chemistry
Council (the successor organization to the CMA)--continued to urge the
Board to revise the existing regulations to make switching arrangements
more available, while also seeking more specific standards or
thresholds for when the Board would require the establishment of a
switching arrangement. Id.
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\14\ The Board also proposed prescribing switching under the
``practicable and in the public interest standard'' based on certain
enumerated, non-exhaustive factors.
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Ultimately, the Board decided not to adopt the regulations proposed
in the 2016 Switching NPRM and instead to advance a new rule in which
it would prescribe a reciprocal switching agreement under the
``practicable and in the public interest standard,'' without invoking
the ``necessary to provide competitive rail service'' standard, based
on certain objective performance standards. See id. at 5-6 (explaining
that the Board shifted focus given major service problems that emerged
subsequent to the 2016 Switching NPRM); see also Reciprocal Switching
for Inadequate Rail Serv. (Part 1145 Final Rule), EP 711 (Sub-No. 2)
(STB served Apr. 30, 2024).\15\ The rule, codified at 49 CFR part 1145,
was subsequently vacated after the reviewing court found that the
``practicable and in the public interest'' standard in section 11102(c)
requires a finding of inadequate service, see supra note 6, and that
part 1145 exceeded the Board's authority because it did not mandate
such a determination. Grand Trunk, 143 F.4th at 754. That remanded
proceeding remains pending before the Board.
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\15\ Under the vacated Part 1145 Final Rule, the Board would
prescribe a reciprocal switching agreement where the rail carrier
failed to meet one of three objective standards designed to address
the following aspects of the rail carrier's performance: reliability
in time of arrival, consistency in travel time, and reliability in
providing first-mile/last-mile service. Part 1145 Final Rule, EP 711
(Sub-No. 2), slip op. at 142-47. Prescription was subject to the
Board's consideration of affirmative defenses and claims that any
such prescription would be operationally infeasible or would unduly
impair the service to other customers. Id. at 150-51; see also id.
at 147-48 (describing affirmative defenses).
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Shippers, shipper associations, and others have continued to argue
that the anticompetitive conduct standard in part 1144 remains an
impediment to relief and have called for its reversal. Indeed, NITL,
ACC, The Fertilizer Institute (TFI), U.S. Department of Transportation
and Federal Railroad Administration, International Warehouse Logistics
Association, Celanese Corporation, Freight Rail Customer Alliance,
National Coal Transportation Association, Portland Cement Association,
Olin Corporation, and National Mining Association all reiterated their
long-time requests that the Board ``overturn[ ] the `anti-competitive
conduct test' '' in their comments on 49 CFR part 1145. See Part 1145
Final Rule, EP 711 (Sub-No. 2), slip op. at 5.
Most recently, in response to a U.S. Department of Justice (DOJ)
initiative launched to investigate anticompetitive state and federal
laws and regulations,\16\ NITL called for partial repeal of 49 CFR part
1144. See NITL Comments 4, ATR-2025-0001, Anticompetitive Regulations
Task Force (May 27, 2025).\17\ NITL emphasized that the part 1144
regulations ``have never been successfully applied to promote or
restore rail competition'' in the 40 years since their adoption, and
given the ``daunting precedent'' under the anticompetitive conduct
standard, no requests for such an arrangement have been filed in the
last 30 years. See id. at 4, 8 & n.21 (noting that the four petitions
for reciprocal switching filed under 49 CFR part 1144 all resulted in
denials). Unlike in the proceeding surrounding the 2016 Switching NPRM,
NITL did not argue for replacement regulations, but rather for ``case-
by-case adjudications'' under the specific facts and circumstances and
based on the ``broader standards in the statute.'' Id. at 10-11. ACC
argued that ``the Board can provide significant regulatory relief and
reduce barriers to competition simply by rescinding the [part] 1144
[[Page 949]]
regulations,'' thereby ``creat[ing] a clean slate for shippers to seek
reciprocal switching under the Board's statutory authority.'' ACC
Comments at 2-3, ATR-2025-0001, Anticompetitive Regulations Task Force
(May 27, 2025). And TFI ``put it bluntly'': ``the anticompetitive
conduct standard is a regulatory barrier to achieving the
congressionally established objective of competitive rail service and
to advancing the Administration's goal of increasing competition and
growing American business.'' TFI Comments at 3, ATR-2025-0001,
Anticompetitive Regulations Task Force (May 27, 2025).
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\16\ DOJ launched its Anticompetitive Regulations Task Force in
response to Executive Order 14192, which directs federal agencies to
``alleviate unnecessary regulatory burdens placed on the American
people.'' See Unleashing Prosperity Through Deregulation, 90 FR 9065
(Jan. 31, 2025).
\17\ NITL proposed repealing the regulation just as it pertains
to reciprocal switching. It offered no explanation for why it does
not similarly ``advocate for repeal of [the part 1144] regulations
to the extent they apply to prescriptions of railroad through rates
and through routes.'' Id. at 4 n.6.
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Discussion and Conclusions
The Board is ``free to change'' an existing regulation or policy so
long as it ``provides a reasoned explanation for the change.'' Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). The Board must
``display awareness that it is changing position,'' show that there are
``good reasons for the new policy,'' and consider ``serious reliance
interests.'' Id. at 221-22 (citing FCC v. Fox Tele. Stations, Inc., 556
U.S. 502, 515 (2009)); see also FDA v. Wages & White Lion Invs., LLC,
604 U.S. 542, 568 (2025). The Board need not necessarily ``provide a
more detailed justification than what would suffice for a new policy
created on a blank slate.'' Encino Motorcars, 579 U.S. at 221. Any new
policy must be consistent with ``statutory jurisdiction, authority, or
limitations'' or within ``statutory right.'' 5 U.S.C. 706. For the
following reasons, the Board proposes to repeal part 1144 and to
consider the prescription of through routes and reciprocal switching
agreements on a case-by-case basis under the applicable statutory
standards.
Repeal of Part 1144
As the Board has already explained, nothing in the plain language
of 49 U.S.C. 11102 mandates that the Board prescribe a reciprocal
switching agreement only when necessary to remedy or prevent an
anticompetitive act. See 2016 Switching NPRM, EP 711 (Sub-No. 1), slip
op. at 10.\18\ Indeed, the court in Midtec made clear that 49 U.S.C.
11102(c) ``is cast in discretionary terms.'' Midtec, 857 F.2d at 1499.
The same must be said for 49 U.S.C. 10705, which is cast in even more
discretionary language. See 49 U.S.C. 10705(a) (providing that the
Board ``may'' prescribe through route and joint rates and ``shall'' do
so when it finds it ``desirable in the public interest''). Thus, the
Board may ``narrow [its] discretion'' to prescribe a reciprocal
switching agreement or prescribe through routes ``where it believes
[granting relief under the statute] would be unwise as a matter of
policy,'' Midtec, 857 F.2d at 1499, and it ``did just that'' when it
adopted the anticompetitive conduct standard, id. at 1500. It follows
that if the Board can narrow its discretion when ``wise'' to do so,
then necessarily the Board can choose to no longer narrow its
discretion in the same manner when it has sound reasons for changing
course. See 2016 Switching NPRM, EP 711 (Sub-No. 1), slip op. at 12
(``If the ICC was able to narrow its discretion, by implication, it
must also be able to broaden its discretion, so long as the agency does
not exceed the limitations set forth in the statute.'').\19\ The Board
is choosing to restore its discretion here to the full extent provided
by the statute in order to better effectuate Congressional intent.
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\18\ Notwithstanding the rail carriers' arguments in response to
the 2016 Switching NPRM that such a showing of anticompetitive
conduct is statutorily mandated, none raised that argument directly
in their later comments or litigation pleadings regarding part 1145,
which did not include such a standard. See CPKC Reply 5 n.2 (Dec.
20, 2023) (citing Midtec, 857 F.2d at 1507 for the proposition that
49 U.S.C. 11102(c) has been held to ``have a limited scope and
cannot be used to restructure the industry,'' but not contending
that an anticompetitive conduct showing is required), EP 711 (Sub-No
2).
\19\ In the 2016 Switching NPRM, the Board rebutted rail carrier
arguments that Congress somehow mandated--as a matter of legislative
ratification--the anticompetitive conduct standard when it passed
ICCTA and reenacted 49 U.S.C. 10705 and 11102(c) without change. See
2016 Switching NPRM, EP 711 (Sub-No. 1), slip op. at 10-13. As the
Board explained, if Congress ratified anything, it was simply that
the agency had discretion under those provisions to impose such a
standard, not that it was required to do so. Id. at 12-13. The
Board's 2016 conclusion regarding ratification remains accurate and
parties are free to comment further on this issue.
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There are ample reasons for repealing part 1144. As an initial
matter, the agency adopted these regulations in large part because NITL
and CMA (now ACC) asked for them, and one of the two ``basic
principles'' underlying the rule--that it be ``acceptable to as broad a
section of the marketplace as possible'' (Original 1144 NPRM, EP 445
(Sub-No. 1), slip op. at 4)--clearly no longer applies.\20\ Neither the
rule's original shipper proponent, NITL, nor seemingly any other
shipper group (including ACC) finds it acceptable, at least as applied
to reciprocal switching. See supra pp. 7-10, 9 n.17. And it makes
little sense to continue to hold shippers to NITL's 1985 agreement with
AAR that was rendered largely obsolete by subsequent statutory and
regulatory changes. Indeed, much of the original rule at part 1144
concerned through route and joint rate suspensions and investigations.
See Original 1144 Final Rule, 1 I.C.C.2d at 839-41. But as noted above,
those parts were abrogated by ICCTA's termination of tariff
requirements and resulting elimination of the Board's authority to set
aside proposed joint rate cancellations. See supra note 2. Part 1144 is
the vestige of an agreement that essentially no longer exists.
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\20\ The other ``basic principle''--consistency with statutory
requirements--is met here where the Board has authority to no longer
narrow its discretion and may resolve requests for through route,
joint rate, and reciprocal switching prescriptions through the
adjudicatory process. See infra pp. 13-14.
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Even more fundamentally, removing part 1144 is sound policy because
it eliminates what appears to have created, in practice, an
unnecessarily high barrier to statutory relief. No doubt always
requiring a petitioner to demonstrate the ``classical categories of
competitive'' abuse, or some other type of abusive, anticompetitive
conduct under the standards of the RTP--requirements that nowhere exist
in section 10705 or section 11102(c)--presents a regulatory impediment
to cases that might otherwise be meritorious under those statutory
provisions. Indeed, that there remains a ``dearth of cases'' under part
1144 continues to suggest (strongly) that the anticompetitive conduct
requirement within part 1144 effectively operates as a bar to relief.
And shippers continue to complain that the anticompetitive conduct
requirement presents an ``insuperable barrier'' to promoting
competition. E.g., NITL Comments 10, Anticompetitive Regulations Task
Force, ATR 2025-0001; NITL Comments 11, Apr. 12, 2011, Competition in
the R.R. Indus., EP 705. The Board sees no compelling reason to keep in
place a rule that substantially narrows the set of cases that may be
brought under sections 10705 and 11102(c), especially where the Board
can develop more flexible standards for today's rail environment via
case-by-case adjudication.
The rail industry has changed significantly since the 1980s,
further leading to part 1144's obsolescence. Over more than 40 years,
extensive line rationalization and consolidations have impacted the
network structure and carrier interactions.\21\ They have also
[[Page 950]]
contributed to a rail industry that today is significantly healthier
financially than it was forty years ago. For example, under the Board's
annual revenue adequacy determination, no Class I rail carrier was
earning adequate revenues forty years ago, see 102d Annual Report of
the Interstate Commerce Commission 104 (1989), and now five of the now-
six Class I carriers that remain today have earned adequate revenues
for at least two of the past four years, see Railroad Revenue Adequacy,
EP 552 (Sub-No. 27) (STB served Sept. 5, 2023); EP 552 (Sub-No. 26)
(STB served Sept. 6, 2022). Indeed, since 2004, Class I carriers'
revenue growth has outpaced inflation amid declining ton-miles. See
TRB, Modernizing Freight Rail Regul., at 28-29, Table 1-1; STB, Office
of Econ., Annual Rail Rate Study Index: 1985-2022 (June 5, 2024), at 2;
see also U.S. Bureau of Transp. Stat. at n.21. Thus, the problems of
inefficient routes and insolvent railroads that so concerned Congress
and the agency at the time of part 1144's adoption, and which
underpinned the accommodation reached by AAR and NITL (and CMA, which
is now the ACC), are of far less concern today. Continuing to rigidly
narrow the Board's statutory discretion, by regulation, to prescribe
reciprocal switching and through routes only when the carrier has taken
steps to abuse its market power is no longer warranted. As discussed
below, a case-by-case approach under the applicable statutory standards
would permit the Board to consider current rail operations, carrier
revenue needs, concerns regarding the particular competitive situation,
and other important issues.
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\21\ In the twenty years following Staggers' passage in 1980,
Class I carriers shed tens of thousands of miles of track. See U.S.
Dep't of Transp., Bureau of Transp. Stat., Transp. Stat. Annual
Report 2023 (Washington, DC: 2023), at 1-28, available at: https://doi.org/10.21949/1529944; Transp. Rsch. Bd. of the Nat'l Academies
(TRB), Modernizing Freight Rail Regul. (Washington, DC: 2015), at 27
(``By 1995, Class I railroads had learned to make much more
intensive use of their inputs and assets: ton-miles per track mile
tripled, ton-miles per carload nearly doubled, and tons per train
grew by nearly 60 percent compared with 1970.''), available at
https://www.nationalacademies.org/read/21759.
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The other provisions of part 1144 also appear to be obsolete or
unnecessary. As noted above, the requirement that the petitioning
shipper or carrier show that it has used or would use the through route
or reciprocal switching agreement to meet a ``significant' portion of
its transportation needs or move a ``significant'' portion of its
traffic corresponds to a statutory provision that no longer exists. See
49 CFR 1144.2(a)(2); Original 1144 Final Rule, 1 I.C.C.2d at 825
(explaining that former 49 U.S.C. 10707(c)(1)(B) prohibited suspension
of a through route or joint rate cancellations unless failure to
suspend would cause ``substantial injury''). As the Board remarked in
2016, it is ``not necessary'' to include such a requirement as a
prerequisite to a prescription under section 10705(a) or section
11102(c). See 2016 Switching NPRM, slip op. at 26-27. The Board is also
concerned about, and seeks comment on, the possibility that this
requirement could have the effect of locking out small businesses from
seeking competitive-access relief. Further, part 1144's restrictions on
product and geographic competition evidence are unnecessary because--in
light of the Board's findings on the burden of such evidence as part of
the market dominance inquiry in rate proceedings under 49 U.S.C.
10707--the Board anticipates excluding evidence of product and
geographic competition from such proceedings. See 2016 Switching NPRM,
EP 711 (Sub-No. 1), slip op. at 27 (noting that consideration of
product and geographic competition is not statutorily required and
imposes a ``substantial burden'' on the Board and parties) (citing,
e.g., Mkt. Dominance Determinations--Prod. & Geographic Competition, 3
S.T.B. 937 (1998)). Under the case-by-case approach, however, any rail
carrier wishing to present such evidence in an individual proceeding
should indicate that it intends to do so early on so that the Board may
consider whether and to what extent the evidence may be presented.
Finally, the Board also anticipates continuing to conduct such
proceedings expeditiously, even if that commitment is not memorialized
in a regulation.
Case-by-Case Adjudication
Upon repeal of part 1144, the Board would consider the prescription
of through routes, through rates, and reciprocal switching agreements
on a case-by-case basis under the applicable statutory standards at 49
U.S.C. 10705(b) and 11102(c), which may be further refined through
agency adjudication under the standards set forth in the Administrative
Procedure Act, 5 U.S.C. 706.\22\ It is well established that agencies
may regulate by rulemaking or adjudication, and it is clearly within
the Board's discretion to act by adjudication under 49 U.S.C. 10705 and
11102(c); neither provision requires the Board to act by rule. See,
e.g., Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 96 (2003) (``The
APA does not require that all the specific applications of a rule
evolve by further, more precise rules rather than by adjudication.'');
NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974) (agency ``is not
precluded from announcing new principles in an adjudicative proceeding
and . . . the choice between rulemaking and adjudication lies in the
first instance within the [agency's] discretion''); SEC v. Chenery
Corp., 332 U.S. 194, 203 (1947) (``[A]gency must retain power to deal
with the problems on a case-to-case basis if the administrative process
is to be effective.''). Indeed, the agency originally resolved to
address post-Staggers petitions for through routes and reciprocal
switching on a ``case-by-case'' basis, emphasizing how adjudication
``lends itself to the in-depth analysis of unique fact patterns
required by the statute.'' Standards for Intramodal Rail Competition,
EP 445, slip op. at 12-13.\23\ The agency passed part 1144 only after
NITL and AAR (and CMA) requested its adoption based on the parties'
agreement. Original 1144 Final Rule, 1 I.C.C.2d at 823. Moreover,
reversion to a case-by-case adjudicative approach is consistent with
the ``two basic principles'' that drove adoption of part 1144 in the
first instance, Original 1144 NPRM, EP 445 (Sub-No. 1), slip op. at 4:
it is plainly ``consistent with statutory requirements'' and reflects
the current lack of ``broad'' support in the marketplace for more
defined standards.
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\22\ Commenters may propose suggestions for the conduct of these
proceedings, including expectations regarding case initiation,
discovery, evidence, and burden of proof, which the Board would
consider incorporating into a non-binding guidance document. But as
explained above, the Board anticipates that the standards for the
granting of a switching or through route prescription would be
further developed through case-by-case adjudication, as NITL and
others have requested.
\23\ The agency did precisely that in Del. & Hudson Ry. v.
Consol. Rail Corp., 367 I.C.C. 718 (1983), and Cent. States Enters.,
Inc. v. Seaboard Coast Line R.R., NOR 38891 (ICC served May 15,
1984), aff'd sub nom. Cent. States Enters., Inc. v. ICC, 780 F.2d
664 (7th Cir. 1985).
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Critically, by acting through adjudication here, the Board would
have the opportunity to consider parties' legal and policy arguments
and to identify relevant factors in the context of specific
circumstances. For example, in response to prior proposals to replace
the standards and processes in part 1144 with new regulations, rail
carriers have argued that changes to the Board's existing reciprocal
approach ``would upset[ ] reliance interests built around the Board's
existing framework. . . .'' See AAR Further Suppl. Comments 4, Apr. 4,
2022, Reciprocal Switching, EP 711 (Sub-No. 1); see also CSX
Transportation Reply Comments 6 n.16, Jan. 13, 2017; id. (arguing that
capital investments ``have been made in reliance on the current
regulatory scheme''). But these rail carriers would be free to argue,
and attempt to demonstrate, adverse impacts from a potential through
route or switch prescription based on investments and other expenses
they may have incurred in reliance on the anticompetitive
[[Page 951]]
conduct standard. Nothing within section 10705 or section 11102(c)
would appear to preclude the Board from declining to prescribe relief
based on such ``reliance interests.'' Wages & White Lion, 604 U.S. at
568; see also Midtec, 857 F.2d at 1499 (``[T[he [agency] is under no
mandatory duty to prescribe reciprocal switching where it believes that
doing so would be unwise as a matter of policy.'') Likewise, shippers
would be free to argue that their existing rail service has not met
whatever expectations they may have had when they made their own
investment decisions related to securing and facilitating rail service.
The Board would also be able to consider, and guard against, decisions
that, if applied consistently as precedent, could lead to a ``radical
restructuring of the railroad regulatory scheme,'' Baltimore Gas &
Electric, 817 F.2d at 115, or other policy problems related to revenue
adequacy.
Alternative Proposal: Partial Repeal of Part 1144
The Board specifically seeks comments on whether it should
partially repeal part 1144 as it applies to reciprocal switching but
leave the regulation in place as to the prescription of through routes
and through rates.
Seemingly all of the Board's reasons given above for repealing part
1144, and replacing it with a case-by-case adjudicatory approach under
the governing statutory provisions, apply just as much to through route
and through rate prescription as they do to the prescription of
reciprocal switching agreements. The anticompetitive conduct and
standing requirements, as applied to both forms of competitive access,
were the product of a consensus among railroads and shippers that no
longer exists and a statute that has since been significantly amended.
See supra pp. 5-6. And there has likewise been a dearth of petitions
for through routes filed with the Board over the years, with the agency
(both ICC and Board) having never prescribed a through route or joint
rate under part 1144's framework. See Canexus Chemicals, NOR 42131,
slip op. at 10 n.50 (prescribing through route in proceeding where the
parties had agreed that part 1144 did not apply to ``review of this
dispute''). Moreover, the agency's decision to narrow its discretion by
requiring an anticompetitive conduct threshold showing with respect to
through routing and joint rate prescriptions would appear to make no
more ``sense in today's regulatory and economic environment'' than it
does with respect to switching. 2016 Switching NPRM, EP 711 (Sub-No. 1)
at 9.\24\
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\24\ At all times, parties are free to argue that the
anticompetitive conduct standard should not apply to proceedings to
establish terminal trackage rights under 49 U.S.C. 11102(a), see
Midtec, 3 I.C.C.2d at 177-78, as was done recently based on the
facts of that particular matter, see Commuter Rail Div. of the Reg'l
Transp. Auth.--Terminal Trackage Rights--Union Pac. R.R., FD 36844,
slip op. at 23-25 (STB served Sept. 3, 2025).
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Nonetheless, NITL and others have indicated interest in the repeal
of part 1144 ``only as to prescriptions of reciprocal switching
arrangements and . . . do[ ] not advocate for repeal of those
regulations to the extent they apply to prescriptions of through rates
or through routes,'' NITL Comment at 4 n.6, Anticompetitive Regulations
Task Force, ATR-2025-0001. In other proceedings, the Board has also
considered iterative approaches that would modify the reciprocal
switching regulations but not disturb the regulations as they apply to
through routes. See 2016 Switching NPRM, EP 711 et al.; Part 1145 Final
Rule, EP 711 (Sub-No. 2). Accordingly, the Board seeks comment on
whether its repeal of part 1144 should be so limited.
Environmental Review
The proposed action is categorically excluded from environmental
review under 49 CFR 1105.6(c).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, 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. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 480 (7th
Cir. 2009). Here, the Board proposes to repeal existing rules, and
those rules are not directed at small entities.\25\ Accordingly,
pursuant to 5 U.S.C. 605(b), the Board certifies that the proposed
action would not have a significant economic impact on a substantial
number of small entities within the meaning of the Act. A copy of this
decision will be served upon the Chief Counsel for Advocacy, Office of
Advocacy, U.S. Small Business Administration.
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\25\ For the purpose of RFA analysis for rail carriers subject
to the Board's jurisdiction, the Board defines a ``small business''
as including only those rail carriers classified as Class III rail
carriers under 49 CFR 1201.1-1. See Small Entity Size Standards
Under the Regul. Flexibility Act, EP 719 (STB served June 30, 2016).
Class III rail carriers have annual operating revenues of $46.3
million or less in 2022 dollars. Class II rail carriers have annual
operating revenues of less than $1.03 billion but more than $46.3
million in 2022 dollars. The Board calculates the revenue deflator
factor annually and publishes the railroad revenue thresholds in
decisions and on its website. 49 CFR 1201.1-1; Indexing the Ann.
Operating Revenues of R.Rs., EP 748 (STB served June 29, 2023).
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Paperwork Reduction Act
Under the Paperwork Reduction Act and regulations thereunder, see
44 U.S.C. 3501-3521 and 5 CFR 1320.8(d)(3), the Board must assess
whether proposed rules would impose burdens with respect to the
collection of information. Here, the Board proposes to repeal existing
rules, and those rules do not relate to the collection information. The
proposed action therefore imposes no burdens within the meaning of the
Act.
Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Order 12866, as modified by Executive Order 14215,
provides that the Office of Information and Regulatory Affairs (OIRA)
will review all significant rules. OIRA has determined that this rule
is significant under section 3(f) of Executive Order 12866. This action
is considered an Executive Order 14192 deregulatory action.
Repealing part 1144 would allow the Board to consider the
prescription of through routes, through rates, and reciprocal switching
agreements on a case-by-case basis under the applicable statutory
standards alone. This will remove an unnecessarily high barrier to
competition in freight rail transportation without negatively impacting
operations or investment decisions by carriers. Should part 1144 be
repealed, the Board anticipates that, at least initially, there may be
an increase in the number of matters that shippers bring before the
Board for resolution under the statutory standards than have
historically been brought under the part 1144 regulations, with
associated administrative costs for carriers, shippers and the Board in
resolving such matters. While the results, and quantitative impacts, of
future case-by-case adjudications are uncertain, increasing competitive
options for shippers can lead to better service and lower rates. These
more efficient market outcomes may be the result of Board-ordered
relief, but additionally, increased access to the Board may also
incentivize carriers and shippers to privately negotiate competitive
solutions to avoid further Board intervention. The Board anticipates
that this rule will be net deregulatory, as the benefits of a more
competitive market resulting from removing these regulatory barriers
will outweigh any increase in administrative
[[Page 952]]
or other costs borne by shippers, carriers, or the Board.
List of Subjects in 49 CFR Part 1144
Common carrier, Freight, Railroads, Rates and fares, and Shipping.
It is ordered:
1. The Board proposes to amend its regulations by repealing part
1144 thereof. Notice of the proposed action will be published in the
Federal Register.
2. Comments are due by March 10, 2026. Reply comments are due by
April 24, 2026.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
4. This decision is effective on its date of service.
Decided: January 6, 2026.
By the Board, Board Members Fuchs, Hedlund, and Schultz.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend title 49, chapter X, subchapter
B of the Code of Federal Regulations as follows:
PART 1144--[REMOVED AND RESERVED]
0
1. Remove and reserve part 1144, consisting of Sec. Sec. 1144.1
through 1144.3.
[FR Doc. 2026-00241 Filed 1-8-26; 8:45 am]
BILLING CODE 4915-01-P