[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Proposed Rules]
[Pages 78075-78076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26506]


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

SURFACE TRANSPORTATION BOARD

49 CFR Part 1108

[Docket No. EP 765]


Joint Petition for Rulemaking To Establish a Voluntary 
Arbitration Program for Small Rate Disputes

AGENCY: Surface Transportation Board.

ACTION: Petition for rulemaking.

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

SUMMARY: The Board institutes a rulemaking proceeding to consider a 
proposal to establish a new, voluntary arbitration program intended to 
help resolve small rate disputes.

[[Page 78076]]


DATES: Published in the Federal Register on December 3, 2020, the Board 
will provide an opportunity for additional public participation in a 
subsequent decision.

ADDRESSES: Comments and replies may be filed with the Board via e-
filing on the Board's website at www.stb.gov and will be posted to the 
Board's website.

FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391. 
Assistance for the hearing impaired is available through the Federal 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On July 31, 2020, five railroad parties--
Canadian National Railway Company (CN); CSX Transportation, Inc. 
(CSXT); The Kansas City Southern Railway Company (KCS); Norfolk 
Southern Corporation; and Union Pacific Railroad Company (UP) 
(collectively, Petitioners) \1\--filed a petition for rulemaking to 
create a new, voluntary small rate case arbitration program, to be 
codified at 49 CFR part 1108a, which would function alongside the 
Board's existing arbitration program at 49 CFR part 1108. Petitioners 
pledge to participate in their proposed arbitration program for a 
period of five years, provided the Board adopts the program according 
to the terms set forth in the petition, including (among other things) 
a right to withdraw from the program if the Board adopts the Final 
Offer Rate Review (FORR) process \2\ without exempting carriers that 
participate in the program from the FORR process. (Pet. 2, 17.)
---------------------------------------------------------------------------

    \1\ The petition lists one of the petitioners only as ``CN.'' In 
their supplemental filing, Petitioners identify this party as the 
``U.S. operating subsidiaries of CN.'' Although not identified in 
either filing, the Board understands ``CN'' to mean Canadian 
National Railway Company. Another petitioner is listed as Norfolk 
Southern Corp., but in the supplemental filing, the party is 
identified as Norfolk Southern Railway Company (NSR), the operating 
affiliate of Norfolk Southern Corp.
    \2\ The Board proposed FORR in Final Offer Rate Review, EP 755 
(STB served Sept. 12, 2019).
---------------------------------------------------------------------------

    Replies to the petition were filed on August 20, 2020, by the 
National Grain and Feed Association (NGFA); Olin Corporation (Olin); 
the American Fuel & Petrochemical Manufacturers (AFPM); and (filing 
jointly) the American Chemistry Council, Corn Refiners Association, 
Institute of Scrap Recycling Industries, National Industrial 
Transportation League, The Chlorine Institute, and The Fertilizer 
Institute (Joint Shippers). The U.S. Department of Agriculture (USDA) 
also filed a reply. Olin, AFPM, and the Joint Shippers generally object 
to the Petitioners' requested program.\3\ While USDA and NGFA express 
support for commencing a rulemaking proceeding, they advocate for 
certain changes to the program requested by the Petitioners. (USDA 
Reply 1; NGFA Reply 1-2.) By decision issued on August 26, 2020, the 
Director of the Office of Proceedings directed Petitioners to submit a 
supplemental pleading responding to the replies and allowed other 
interested persons to respond as well.
---------------------------------------------------------------------------

    \3\ In a comment filed in Docket No. EP 755, the U.S. Wheat 
Associates Transportation Working Group (U.S. Wheat) also expressed 
``several concerns'' regarding the Petitioners' requested program. 
See U.S. Wheat Comment 6, Aug. 12, 2020, Final Offer Rate Review, EP 
755.
---------------------------------------------------------------------------

    On September 10, 2020, Petitioners submitted a supplemental filing, 
as did AFPM, U.S. Wheat, and the Joint Shippers. Petitioners state that 
they are agreeable to some modifications to their proposed program, but 
not to the modifications suggested by other interested parties on 
confidentiality, exemption from FORR, and a prohibition on revenue 
adequacy considerations. The shipper groups renewed their objections to 
Petitioners' proposed program.
    The Board favors the resolution of disputes through alternative 
dispute resolution whenever possible, see 49 CFR 1109.1, and has also 
been actively working to expand access to rate relief, particularly for 
smaller disputes. The Rate Reform Task Force (RRTF), which the Board 
established in 2018 to develop recommendations for rate reform, 
recommended legislation that would permit mandatory arbitration of 
small disputes, in addition to a Board-administered final offer 
decision-making process,\4\ the latter of which the Board has proposed 
in Docket No. EP 755. (RRTF Report 14-20.) In order for the Board to 
give further consideration to providing a new arbitration program under 
which parties would voluntarily participate to resolve rate disputes, 
the Board concludes that it is appropriate to institute a rulemaking 
proceeding to consider Petitioners' proposal.\5\ The Board will provide 
an opportunity for additional public participation in a subsequent 
decision.
---------------------------------------------------------------------------

    \4\ The RRTF issued its report on April 25, 2019. The RRTF 
Report is available on the Board's website at https://prod.stb.gov/wp-content/uploads/Rate-Reform-Task-Force-Report-April-2019.pdf.
    \5\ The Board also notes the Petitioners' proposed 
interrelationship between their proposed arbitration program and the 
Board's proposal in Docket No. EP 755.
---------------------------------------------------------------------------

List of Subjects in 49 CFR 1108

    Administrative practice and procedure, Railroads.

    It is ordered:
    1. Petitioners' request to initiate a rulemaking proceeding is 
granted, as discussed above.
    2. Notice of this decision will be published in the Federal 
Register.
    3. This decision is effective on its service date.

    Decided: November 24, 2020.

    By the Board, Board Members Begeman, Fuchs, and Oberman.
Tammy Lowery,
Clearance Clerk.
[FR Doc. 2020-26506 Filed 12-2-20; 8:45 am]
BILLING CODE 4915-01-P