Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 63897 

(12) 40 U.S.C. 502(e), which provides for 

the use by the American National Red Cross 

and other qualified organizations, as defined 

in 40 U.S.C. 502(e)(3). Purchases under this 

authority by the American National Red 

Cross shall be used in furtherance of the 

purposes of the American National Red Cross 

set forth in 36 U.S.C. 300102. Purchases 

under this authority by other qualified 

organizations shall be used in furtherance of 

purposes determined to be appropriate to 

facilitate emergency preparedness and 

disaster relief and set forth in guidance by 

the Administrator of General Services, in 

consultation with the Administrator of the 

Federal Emergency Management Agency. 

(13) 42 U.S.C. 247d, which provides for the 

use by State or local governments, as defined 

in 40 U.S.C. 502(c)(3)(A), when a public 

health emergency has been declared by the 

Secretary of Health and Human Services 

under section 319 of the Public Health 

Services Act. The GSA program 

implementing this authority is the Public 

Health Emergencies program. 

(14) FAR subpart 51.1, which provides for 

the use by contractors, including 

subcontractors, when such use is authorized 

pursuant to FAR subpart 51.1. 

(End of clause) 

552.238–114 Use of Federal Supply 

Schedule Contracts by Eligible Non-Federal 

Entities. 

As prescribed in 538.7005, insert the 

following clause: 

Use of Federal Supply Schedule Contracts by 

Eligible Non-Federal Entities (Date) 

(a) Definition. 

Non-Federal entity, as used in this clause, 

means any state, local, territorial, or tribal 

government, or any instrumentality thereof 

(including any local educational agency or 

institution of higher education); and any 

other non-Federal organization (e.g., a 

qualified nonprofit agency as defined in 40 

U.S.C. 502(b)). 

(b) Responsibilities. Eligible non-Federal 

entities are responsible for complying with— 

(1) FSS ordering guidance. Information 

about GSA’s FSS contracts, including 

ordering guidance is available at https://

www.gsa.gov/schedules; and 

(2) Any conditions of the underlying 

authority(ies) supporting the use of FSS 

contracts (e.g., 40 U.S.C. 502(c) limits 

purchases to specific supplies and services 

available under FSS contracts). 

(c) Acceptance. (1) The Contractor is 

encouraged, but not obligated, to accept 

orders from eligible non-Federal entities 

under this contract. The Contractor may, 

within 5 business days of receipt of an order, 

reject an order from an eligible non-Federal 

entity for any reason. However, purchase 

card orders must be rejected within 24 hours 

of receipt of the order. Failure to reject an 

order within these timeframes shall 

constitute acceptance. 

(2) The Contractor is encouraged, but not 

obligated, to enter into blanket purchase 

agreements (BPAs) with eligible non-Federal 

entities under the terms of this contract. The 

Contractor should respond to any requests to 

enter into a BPA within 5 business days of 

receipt of the request. 

(d) Conditions of acceptance. If the 

Contractor accepts an order from or enters 

into a BPA with an eligible non-Federal 

entity under this contract, the following 

conditions apply: 

(1) For orders, a separate contract is formed 

between the Contractor and the eligible nonFederal entity (herein ‘‘the parties’’). For 

BPAs, a separate agreement is formed 

between the parties. 

(2) The resultant order or BPA shall 

incorporate by reference all the terms and 

conditions of this contract except for: 

(i) FAR clause 52.233–1, Disputes, and 

(ii) Paragraphs (d) Disputes, (h) Patent 

indemnity, and (r) Compliance with laws 

unique to Government contracts, of GSAR 

clause 552.212–4, Contract Terms and 

Conditions—Commercial Products and 

Commercial Services. 

(3) The U.S. Government is not liable for 

the performance or nonperformance of any 

order or BPA entered into under this contract 

by the parties. Disputes which cannot be 

resolved by the parties may be litigated in 

any State or Federal court with jurisdiction 

over the parties, applying Federal 

procurement law, including statutes, 

regulations, and case law, and, if pertinent, 

the Uniform Commercial Code. To the extent 

authorized by law, the parties are encouraged 

to resolve disputes through alternative 

dispute resolution. 

(4) Neither party will look to, primarily or 

in any secondary capacity, or file any claim 

against the U.S. Government or any of its 

agencies with respect to any failure of 

performance by the other party. 

(e) Additional terms and conditions. Terms 

and conditions required by statute, 

ordinance, regulation, or as otherwise 

required by an eligible non-Federal entity 

may be made a part of an order or a BPA to 

the extent that these terms and conditions do 

not conflict with the terms and conditions of 

this contract. The Contractor should review 

any such additional terms and conditions 

prior to accepting an order or entering into 

a BPA with an eligible non-Federal entity. 

(f) Payment. (1) The Contractor is 

responsible for obtaining all payments due to 

the Contractor from the eligible non-Federal 

entity under the terms and conditions of the 

order or the BPA entered into under this 

contract, without recourse to the U.S. 

Government or any of its agencies that 

awarded this contract or administer this 

contract. 

(2) If an eligible non-Federal entity is 

subject to a State prompt payment law, the 

terms and conditions of the applicable State 

law apply to the orders placed under this 

contract by such entities. If an eligible nonFederal entity is not subject to a State prompt 

payment law, the terms and conditions of 

paragraph (i) of the GSAR clause at 552.212– 

4, apply to such entities in the same manner 

as to Federal entities. 

(g) Fee and sales reporting. The 

requirements of the GSAR clause at 552.238– 

80, Industrial Funding Fee and Sales 

Reporting, apply to any sales to eligible nonFederal entities under this contract. 

(End of clause) 

[FR Doc. 2023–20098 Filed 9–15–23; 8:45 am] 

BILLING CODE 6820–61–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Part 1145 

[Docket No. EP 711 (Sub-No. 2)] 

Reciprocal Switching for Inadequate 

Service 

AGENCY: Surface Transportation Board. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This decision proposes, in a 

new subdocket, a new set of regulations 

that would provide for the prescription 

of reciprocal switching agreements to 

address inadequate rail service, as 

determined using objective standards 

based on a carrier’s original estimated 

time of arrival, transit time, and firstmile and last-mile service. To help 

implement the new regulations, the 

Surface Transportation Board (Board or 

STB) proposes to require Class I carriers 

to submit certain data, which would be 

publicly accessible and generalized; and 

to adopt a new requirement that, upon 

written request by a customer, a rail 

carrier must provide to that customer 

individualized, machine-readable 

service data. 

DATES: Comments are due by October 

23, 2023. Replies are due by November 

21, 2023. 

ADDRESSES: All filings must be 

submitted to the Surface Transportation 

Board either via e-filing on the Board’s 

website or in writing addressed to 395 

E Street SW, Washington, DC 20423– 

0001. Filings will be posted to the 

Board’s website and need not be served 

on other commenters or any other party 

to the proceedings. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Quinn at (202) 740–5567. If you 

require accommodation under the 

Americans with Disabilities Act, please 

call (202) 245–0245. 

SUPPLEMENTARY INFORMATION: 

Overview. In 2016, the Board issued a 

notice of proposed rulemaking in 

Reciprocal Switching (2016 NPRM), EP 

711 (Sub-No. 1) et al. (STB served July 

27, 2016), under which the agency 

would exercise its statutory authority to 

require rail carriers to enter into 

reciprocal switching agreements under 

49 U.S.C. 11102(c). Due to 

developments in the freight rail industry 

since the Board’s 2016 notice, including 

critical and ongoing service problems, 

the Board has decided to focus, at this 

time, its reciprocal switching reforms on 

more specific and objective remedies for 


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1Following the completion of Docket No. EP 711 

(Sub-No. 2), the Board intends to take further action 

in Docket No. EP 770 (Sub-No. 1) and in First-Mile/ 

Last-Mile Service, Docket No. EP 767, in which the 

Board invited comments on first mile/last mile 

(FMLM) service issues. 

inadequate rail service. Therefore, the 

Board is closing Docket No. EP 711 

(Sub-No. 1) and proposing a new set of 

regulations that would supplement the 

Board’s existing provisions on 

reciprocal switching in cases where the 

rail carrier is providing inadequate 

service. A separate notice announcing 

the closure is being published 

concurrently. 

The newly proposed regulations 

would provide for the prescription of a 

reciprocal switching agreement when 

service to a terminal-area shipper or 

receiver fails to meet certain objective 

performance standards. The proposed 

standards are intended to reflect a 

minimum level of rail service below 

which regulatory intervention may be 

warranted, considering shippers and 

receivers’ need for reliable, predictable, 

and efficient rail service as well as rail 

carriers’ need for a certain degree of 

operating flexibility. The Board 

proposes that—when an incumbent rail 

carrier’s service fails to meet the 

performance standards, the incumbent 

carrier lacks an affirmative defense, and 

the prescription of a reciprocal 

switching agreement would be 

practicable—it is in the public interest 

to allow access to an alternate rail 

carrier through prescription of a 

reciprocal switching agreement, which 

is consistent with the public interest 

prong of section 11102(c). The use of 

objective performance standards would 

also provide predictability and 

efficiency in regulatory proceedings in 

which a petitioner seeks a prescription. 

49 U.S.C. 10101(15). 

To facilitate implementation of the 

new regulations, the Board proposes to 

require Class I rail carriers to provide, 

upon written request by a shipper or 

receiver, that customer’s own 

individualized service data. 

Additionally, to ensure that the Board 

would have an informed view of service 

issues across the network, the agency 

proposes to make permanent the filing 

of certain data that the Board has 

collected on a temporary basis in Urgent 

Issues in Freight Rail Service—Railroad 

Reporting, Docket No. EP 770 (Sub-No. 

1), and to provide for consistency in 

reporting that data.1

The Current Framework for Alternate 

Access through Reciprocal Switching. 

Alternate access generally refers to the 

ability of a shipper or receiver or an 

alternate railroad to use the facilities or 

services of an incumbent railroad to 

extend the reach of the services 

provided by the alternate railroad. The 

provisions of 49 U.S.C. 11102 and 10705 

make three alternate access remedies 

available to shippers/receivers and 

carriers: the prescription of terminal 

trackage rights, the prescription of 

reciprocal switching agreements, and 

the establishment of through routes. As 

discussed below, reciprocal switching 

agreements provide for the transfer of a 

rail shipment between Class I rail 

carriers or their affiliated companies 

within the terminal area in which the 

shipment begins or ends its journey on 

the rail system. The incumbent rail 

carrier either (1) moves the shipment 

from the point of origin in the terminal 

area to a local yard, where an alternate 

carrier picks up the shipment to provide 

the line haul; or (2) picks up the 

shipment at a local yard where an 

alternate carrier placed the shipment 

after providing the line haul, for 

movement to the final destination in the 

terminal area. The alternate carrier 

might pay the incumbent carrier a fee 

for providing that service. The fee is 

often incorporated in some manner into 

the alternate carrier’s total rate to the 

shipper. A reciprocal switching 

agreement thus enables an alternate 

carrier to offer its own single-line rate or 

joint-line through rate for line-haul 

service, even if the alternate carrier’s 

lines do not physically reach the 

shipper’s/receiver’s facility. See 2016 

NPRM, EP 711 (Sub-No. 1) et al., slip op. 

at 2. 

A reciprocal switching agreement can 

be voluntary or may be prescribed by 

the Board as provided in section 

11102(c). Section 11102(c) authorizes 

the Board to require rail carriers to enter 

into reciprocal switching agreements 

when practicable and in the public 

interest or when necessary to establish 

competitive rail service. 49 U.S.C. 

11102(c)(1). Currently, the Board has 

two sets of regulations under which it 

considers whether to prescribe a 

reciprocal switching agreement in nonemergency situations. 

Part 1147 of the Board’s current 

regulations addresses reciprocal 

switching related to inadequate service. 

Under part 1147, the Board will 

prescribe a reciprocal switching 

agreement (or terminal trackage rights 

under section 11102(a) or a through 

route under section 10705) if the Board 

determines that there has been a 

substantial, measurable deterioration or 

other demonstrated inadequacy in rail 

service by the incumbent carrier. 49 

CFR 1147.1(a). Part 1144 governs 

reciprocal switching to address a 

broader set of issues, including certain 

types of complaints about pricing and/ 

or service. Under part 1144, the Board 

will prescribe a reciprocal switching 

agreement or through route as necessary 

to remedy or prevent an act that is 

contrary to the competition policies in 

49 U.S.C. 10101 or is otherwise 

anticompetitive, provided that certain 

other conditions are also met. 49 CFR 

1144.2(a)(1); 49 U.S.C. 10101. 

The 2016 NPRM. In the 2016 NPRM, 

the Board proposed to remove the 

references to reciprocal switching from 

part 1144 and to create new regulations 

at a new part 1145 to govern reciprocal 

switching. The new regulations would 

have eliminated the requirement that 

the petitioner show that the reciprocal 

switching agreement was needed to 

prevent an act that is contrary to the 

competition policies in section 10101 or 

is otherwise anticompetitive. Under part 

1145 as proposed in the 2016 NPRM, the 

Board would prescribe a reciprocal 

switching agreement when it either was 

practicable and in the public interest or 

was necessary to provide competitive 

rail service, based on certain criteria. 

2016 NPRM, EP 711 (Sub-No. 1) et al., 

slip op. at 16; see also id. at 9 

(proposing to repeal part 1144 and to 

reverse the policy adopted by the 

Interstate Commerce Commission in 

Midtec Paper Corp. v. Chi. & NW 

Transp. Co. (Midtec), 3 I.C.C.2d 171 

(1986), to the extent that the agency 

indicated an intent to treat the two 

standards in section 11102(c) as a single 

standard). 

In assessing whether a reciprocal 

switching agreement would be 

practicable and in the public interest, 

the Board proposed a general test that 

would consider whether the benefits of 

the proposed agreement would 

outweigh its potential detriments, 

considering all relevant factors. 2016 

NPRM, EP 711 (Sub-No. 1) et al., slip op. 

at 18. Examples of potentially relevant 

factors included (1) whether the 

arrangement would further the rail 

transportation policy of section 10101; 

(2) the efficiency of the proposed 

arrangement; (3) whether the 

arrangement would allow access to new 

markets; (4) the impacts, if any, of the 

arrangement on capital investment, 

quality of service, and employees; (5) 

the amount of traffic that would be 

moved under the arrangement; and (6) 

the impact, if any, of the arrangement on 

the rail transportation network. 2016 

NPRM, EP 711 (Sub-No. 1) et al., slip op. 

at 18. The Board proposed not to find 

that the prescription of a reciprocal 

switching agreement would be 

practicable and in the public interest if 

either of the affected rail carriers 

showed that service under the 

agreement is not feasible, is unsafe, or 


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2The Board also proposed possible 

methodologies for determining how an incumbent 

carrier would be compensated if the incumbent 

carrier and the alternate carrier could not reach 

agreement on their own. 2016 NPRM, EP 711 (SubNo. 1) et al., slip op. at 24–26. 

3See also Revisions to Reguls. for Expedited 

Relief for Serv. Emergencies, EP 762 (STB served 

Apr. 22, 2022) (proposing to amend the agency’s 

emergency service regulations and noting that, 

since late 2013, railroad service challenges have 

periodically affected a wide range of geographic 

regions and commodities). 

4A number of these parties sought reciprocal 

switching relief as part of the acquisition of Kansas 

City Southern and its railroad affiliates by Canadian 

Pacific Railway Limited. Canadian Pac. Ry.— 

Control—Kan. City S., FD 36500 et al., slip op. at 

83–85 (STB served Mar. 15, 2023). 

5BNSF Railway Company (BNSF), CSX 

Transportation, Inc. (CSXT), Norfolk Southern 

Railway Company (NSR), and Union Pacific 

Railroad Company (UP). 

will unduly hamper the ability of that 

carrier to serve its shippers. Id. 

In assessing whether a reciprocal 

switching agreement would be 

necessary to provide competitive rail 

service for shippers served by a single 

Class I railroad, the Board proposed to 

consider whether intermodal and 

intramodal competition were effective 

with respect to the movements for 

which the agreement was sought. Id. at 

27.2 As with the other test, the Board 

proposed not to prescribe a reciprocal 

switching agreement based on certain 

feasibility, safety, or operational 

considerations. 

The Board engaged the public on the 

proposal in various ways, including by 

receiving and reviewing filed 

comments, holding a public hearing, 

and subsequently inviting supplemental 

comments. Board Members also 

participated in ex parte meetings in 

which they received input from 

numerous interested parties. 

The 2016 NPRM and hearing 

generated a broad range of responses 

from those supporting reform and those 

opposing the reciprocal switching 

proposal. A fuller overview of the initial 

comments and replies submitted in 

response to the 2016 NPRM can be 

found in the December 28, 2021 notice 

announcing the hearing. See Reciprocal 

Switching, EP 711 (Sub-No. 1), slip op. 

at 4–6 (STB served Dec. 28, 2021). Rail 

carriers generally objected to 

modifications to the Board’s current 

reciprocal switching regulations. Other 

commenters suggested a streamlined 

approach to reduce complexity and 

provide more certainty. Some 

commenters recommended procedural 

changes, (see Shipper Coal. Comment 

23–31, Oct. 26, 2016), and others raised 

concerns with various aspects of the 

proposal. 

Service Problems. As the Board was 

developing and considering the 2016 

NPRM, it was also addressing a series of 

major service problems plaguing the rail 

network. In April 2014, the Board 

announced that it would hold a hearing 

to provide interested persons the 

opportunity to report on recent service 

problems, to hear from rail industry 

executives on plans to address their 

service problems, and to discuss 

additional options to improve service. 

U.S. Rail Serv. Issues, EP 724, slip op. 

at 1 (STB served Apr. 1, 2014). Docket 

No. EP 724 ultimately led the Board to 

adopt rules requiring the Class I 

railroads, and the Chicago 

Transportation Coordination Office 

through its Class I members, to file 

weekly service data with the Board. U.S. 

Rail Serv. Issues—Performance Data 

Reporting, EP 724 (Sub-No. 4) (STB 

served Nov. 30, 2016).3

In April 2022, given widespread 

concern about rail service and 

deteriorating trends reflected in the data 

collected, the Board convened a two-day 

hearing to explore issues related to the 

reliability of the national rail network. 

Urgent Issues in Freight Rail Serv., EP 

770, slip op. at 1 (STB served Apr. 7, 

2022). The Board stated that it had been 

hearing from a broad range of 

stakeholders about inconsistent and 

unreliable rail service related to tight car 

supply and unfilled car orders, delays in 

transportation for carload and bulk 

traffic, increased origin dwell time for 

released unit trains, missed switches, 

and ineffective customer assistance. Id. 

at 2. Shippers also expressed concern in 

the reciprocal switching proceeding that 

carriers’ recently adopted operating 

procedures have introduced new service 

issues and that captive shippers have 

had little, if any, recourse during these 

disruptions. (Coal. Ass’ns Comment 10, 

Feb. 14, 2022; Priv. Railcar Food & 

Beverage Ass’n (PRFBA) Comment 20, 

Feb. 14, 2022; Indus. Mins. Ass’n-N. 

Am. Comment, Feb. 14, 2022; U.S. 

Wheat Assocs. Comments, Feb. 14, 

2022; Am. Fuel & Petrochem. Mfrs., Feb. 

14, 2022.) 4 The Coalition Associations 

further asserted that service disruptions 

following changes to a railroad’s 

operating practices exposed the 

inadequacy of the Board’s current 

regulations to remedy service 

disruptions effectively. (Coal. Ass’ns 

Comment 10, Feb. 14, 2022.) In Docket 

No. EP 770 (Sub-No. 1), the Board has 

required additional, temporary reporting 

of data needed for a timelier 

understanding of the extent and location 

of acute service issues and labor and 

equipment shortages and has required 

the four largest U.S. Class I rail carriers 5

to submit to the Board ‘‘service recovery 

plans.’’ Urgent Issues in Freight Rail 

Serv.—R.R. Reporting, EP 770 (Sub-No. 

1) (STB served May 6, 2022); Urgent 

Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1) (STB 

served May 2, 2023) (extending the 

temporary reporting period for all Class 

I rail carriers to December 31, 2023). 

New Approach. Given the major 

service problems subsequent to the 2016 

NPRM and the history of recurring 

service problems that continue to plague 

the industry, the Board has concluded 

that it is appropriate, at this time, to 

focus reciprocal switching reform on 

addressing inadequate service. The 

Board recognizes that, over the past 

several months, Class I carriers have 

taken steps that are intended to improve 

service and that, in some cases, service 

has improved. These recent 

developments do not, however, provide 

the certainty that is needed to protect 

the public interest, as well as the 

interests of rail customers, in adequate 

service on a general and sustained basis. 

The Board expects that the more 

objective and transparent standards, 

defenses, and definitions in this 

proposal, compared to the previous 

proposal, would provide that certainty. 

Through the approach that is proposed 

in this new subdocket, the Board 

intends to provide appropriate 

regulatory incentives to Class I carriers 

to achieve and to maintain higher 

service levels on an ongoing basis. The 

Board anticipates that the data access 

and standardization provisions in this 

proposal, which have no equivalent in 

the previous proposal, would ensure 

and enhance these benefits. 

Accordingly, to allow the Board to 

focus on service issues as provided 

herein, and to advance more objective 

standards and related defenses and 

definitions, the Board will not at this 

time adopt the rules proposed in the 

2016 NPRM. We will close Docket No. 

EP 711 (Sub-No. 1) and instead propose, 

in Docket No. EP 711 (Sub-No. 2), a new 

rule focused on more defined processes 

for the prescription of a reciprocal 

switching agreement in cases of 

inadequate service. 

As discussed more fully below, under 

part 1145, the Board would find that 

prescription of a reciprocal switching 

agreement is ‘‘practicable and in the 

public interest’’ based on objective 

standards measuring the adequacy of 

rail service and a straightforward 

analysis regarding the practicability of 

the proposed agreement. 49 U.S.C. 

11102(c). It is clear that both the reliable 

and timely delivery of rail shipments 

and the efficient movement of 

shipments through the rail system are 

essential to meeting the public need for 

adequate rail service. The public need 


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6Rail service data collected pursuant to 49 CFR 

part 1250 is available on the Board’s website at 

www.stb.gov/reports-data/rail-service-data/. 

7Although concerns about reliability also 

underlie part 1147 of the Board’s regulations, 49 

CFR 1147.1, see Expedited Relief for Service 

Inadequacies, 3 S.T.B. 968 (1998), that rule does not 

appear to have had its full intended effect. Among 

other things, part 1147 does not include provisions 

that provide certainty to industry participants, such 

as by setting a minimum term for the duration of 

a prescription thereunder. Despite demonstrated 

widespread service failures across the national 

network, no petition for prescribed access has been 

pursued under part 1147 in many years. Separately, 

comments from shippers and their counsel indicate 

that they interpret current part 1144 as unduly 

restrictive as to a shipper’s ability to obtain relief 

under part 1144. 2016 NPRM, EP 711 (Sub-No. 1) 

et al., slip op. at 8. 

8Based on the long history of the Board’s 

consideration of issues stemming from Midtec and 

the ensuing caselaw, and the numerous comments 

submitted in response to the 2016 NPRM, the Board 

recognizes that stakeholders may have broader 

views of what actions the Board should consider 

undertaking with respect to the residual application 

of part 1144, as well as the application of other 

competitive access statutes, regulations, and 

caselaw. In light of the approach proposed in the 

new part 1145, the Board welcomes comment on 

what other actions, if any, it should consider with 

respect to competitive access and, in particular 

whether it should further broaden the application 

of the public interest prong of section 11102. See 

also infra note 27. 

for adequate rail service is, in turn, 

central to the design of the Interstate 

Commerce Act, as amended by the ICC 

Termination Act of 1995, Pub. L. 104– 

88, 109 Stat. 803: an essential aspect of 

the rail transportation policy set forth in 

the Act is to ensure the development 

and continuation of a rail system that 

meets the needs of the public and the 

national defense. 49 U.S.C. 10101(4). 

The Board’s experience in recent 

service oversight proceedings reaffirms 

that carriers’ failure to provide reliable, 

timely, and efficient delivery of rail 

shipments can result in serious 

consequences for the transportation 

network and beyond. For example, in 

the year following the Urgent Issues 

hearings in 2022, the Board has 

continued to closely monitor rail service 

performance data submitted in that 

docket and pursuant to 49 CFR part 

1250.6 That data showed that, for 

certain metrics, railroads did not meet 

the performance targets that the 

railroads themselves set for improving 

service. Overall, the data for key 

performance indicators—such as 

velocity, terminal dwell, FMLM service 

(i.e., industry spot and pull), operating 

inventory, and trip plan compliance— 

showed that railroad operations 

remained generally challenged through 

much of the last two years, with 

associated impacts on shippers and the 

public. Poor performance by rail carriers 

can substantially impair shippers’ 

ability to operate their businesses on an 

economic basis. That impairment in 

turn harms the United States’ economy 

as a whole. See, e.g., Am. Fuel & 

Petrochem. Mfrs. Written Testimony 4, 

Apr. 28, 2022, Urgent Issues in Freight 

Rail Serv., EP 770 (noting that its 

‘‘member companies have been forced 

to reduce facility throughput and 

subsequently inform their downstream 

customers that shipments may be 

delayed’’). Inadequate rail service, 

particularly when it can be avoided or 

mitigated, is therefore contrary to the 

public interest. See Oversight Hr’g 

Pertaining to Union Pac. R.R. 

Embargoes, EP 772, slip op. at 2–3 (STB 

served Nov. 22, 2022). 

Relationship to Other Access Rules. 

The new regulations at part 1145 would 

provide an independent basis for 

prescription of a reciprocal switching 

agreement, separate and apart from parts 

1144 and 1147, rather than replacing 

aspects of part 1144 as proposed in the 

2016 NPRM, even though those parts, 

historically, have not been utilized 

frequently by the rail shipper 

community.7 For the reasons set forth in 

this NPRM, the Board has determined 

that the proposed part 1145 would 

provide an essential addition to the 

current remedial framework. In 

particular, since part 1147 was 

promulgated, technological 

advancements have permitted railroads 

to track and to provide much more 

granular and timely service data, which 

in turn gives the Board and other 

stakeholders a better view of service 

difficulties. Accordingly, the Board’s 

concerns in Expedited Relief for Service 

Inadequacies about delineating specific 

standards for service adequacy, see 

Expedited Relief for Service 

Inadequacies, 3 S.T.B. at 975, are far 

less pressing today. Worrisome and 

persistent declines in service reliability 

are more clearly demonstrated now than 

when the Board adopted part 1147 in 

1998. 

The Board notes, however, that, even 

after the enactment of the proposed new 

part 1145, shippers may still pursue 

access to an alternate rail carrier under 

parts 1144 and 1147 and that these parts 

do allow for continued development, 

including, as appropriate, reassessment 

by the Board of adjudicatory policies 

and the appropriate application of those 

rules in individual cases. 

Indeed, in choosing to focus 

reciprocal switching reform on service 

issues at this time, the Board does not 

intend to suggest that consideration of 

additional reforms geared toward 

increasing competitive options—e.g., 

further changes to the reciprocal 

switching regulations (either with 

regard to the public interest prong or the 

competition prong), or reforms 

regarding terminal trackage rights, 

through routes, or the so-called 

‘‘bottleneck’’ doctrine—is foreclosed, 

whether in this subdocket or otherwise. 

For example, as discussed infra at note 

27, the Board is considering whether the 

prescription of terminal trackage rights 

under 49 U.S.C. 11102(a) would be an 

appropriate remedy for proven failures 

in local service. 

To provide a clearer path to address 

the impact of service deficiencies on the 

network, the new regulations at part 

1145 would provide for prescription of 

a reciprocal switching agreement based 

on defined service standards pursuant 

to the ‘‘practicable and in the public 

interest’’ prong of section 11102(c). 

Further distinguishing the new 

approach from parts 1144 and 1147, the 

Board proposes to expressly overrule 

the standards and criteria regarding 

reciprocal switching established in 

Midtec as applying to any petition under 

the new part 1145. And a petition filed 

under the proposed part would not be 

required to address any of the standards 

or criteria established under part 1144.8

Proposed Standards. The standards 

that are proposed here are informed by 

the recent level of performance that 

carriers themselves have acknowledged 

largely do not meet the expectations or 

needs of the public. While, in some 

cases, an increase in shipping times 

might be due to circumstances beyond 

the carrier’s control, some carriers have 

acknowledged that their service levels 

in recent years do not meet customer 

expectations and must be addressed 

through carrier improvement. See, e.g., 

BNSF Supp. Serv. Recovery Plan 1, June 

23, 2022, Urgent Issues in Freight Rail 

Serv.—R.R. Reporting, EP 770 (Sub-No. 

1) (‘‘[W]e note that BNSF’s service has 

not been meeting our customers’ 

expectations for several months.’’); 

CSXT Revised Serv. Recovery Plan 2, 

June 23, 2022, Urgent Issues in Freight 

Rail Serv.—R.R. Reporting, EP 770 (SubNo. 1) (citing crew shortages as the 

cause of ‘‘ongoing congestion and delay 

on the CSXT network’’ and discussing 

recovery efforts); UP Revised Serv. 

Recovery Plan 4, June 23, 2022, Urgent 

Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1) 

(describing an inability to maintain 

transit schedules and continued efforts 

to achieving greater fluidity); NSR 

Revised Serv. Recovery Plan 2, June 23, 

2022, Urgent Issues in Freight Rail 

Serv.—R.R. Reporting, EP 770 (Sub-No. 

1) (describing its ‘‘aggressive efforts to 


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restore our service to what we and our 

customers expect’’). 

The proposed standards are intended 

to address (1) a rail carrier’s failure to 

meet its original estimated time of 

arrival (OETA), i.e., to have adequate 

on-time performance; (2) a deterioration 

in the time it takes a rail carrier to 

deliver a shipment (transit time); and (3) 

a rail carrier’s failure to provide 

adequate local (or FMLM) service, as 

measured by the carrier’s success in 

meeting an ‘‘industry spot and pull’’ 

(ISP) standard. Each standard would 

provide an independent path for a 

petitioner to obtain prescription of a 

reciprocal switching agreement under 

part 1145. 

That prescription would facilitate 

future line-haul service by an alternate 

rail carrier but—of critical note—would 

not necessitate that result. Under part 

1145, the petitioner would not be 

required to rely on the alternate carrier 

for any portion of the petitioner’s traffic 

during the term of the prescription. As 

a result, even upon falling short of a 

performance standard in part 1145, 

resulting in an award of reciprocal 

switching to the petitioner, the 

incumbent rail carrier would have the 

opportunity (subject to contractual 

commitments by the petitioner) to 

continue to compete for the petitioner’s 

traffic. 

Original Estimated Time of Arrival. 

To address poor performance in timely 

delivery by a line-haul carrier, part 1145 

would provide for the prescription of a 

reciprocal switching agreement (and 

would facilitate line-haul service by an 

alternate rail carrier) when the 

incumbent rail carrier failed to meet an 

objective service reliability standard. 

The Board finds that it is in the public 

interest to provide, by a more easily 

administrable rule, for the prescription 

of a reciprocal switching agreement 

when an incumbent carrier fails to 

provide reliable service, both because a 

clearer and more objective rule would 

create an incentive for rail carriers to 

provide adequate service in the first 

instance and because, if a rail carrier did 

not do so, the affected shippers and 

receivers would then have more 

certainty in their opportunities to obtain 

line-haul service from an alternate 

carrier. Rail carriers themselves 

recognized at the hearing in Docket No. 

EP 711 (Sub-No. 1) that prescribed 

access is an appropriate response to 

inadequate service. (See Hr’g Tr. 938:12 

to 939:21, Mar. 16, 2022.) 

The new service reliability standard, 

based on the rail carrier’s OETA, would 

advance the public interest by 

establishing a reasonable expectation 

that, after a Class I rail carrier provides 

an estimated time of arrival for a line 

haul, the carrier will customarily meet 

that estimated time of arrival. The 

proposed rule also recognizes that, in 

some cases, delay may result from 

circumstances beyond the carrier’s 

control. The proposed rule would not 

require perfection in rail carriers’ 

operations, even in the absence of 

circumstances beyond the carrier’s 

control. But the degree and frequency of 

delays that have recently characterized 

service by Class I rail carriers make clear 

that the public interest would be better 

served by targeted regulatory 

intervention that facilitates service by 

an alternate rail carrier when service 

reliability has fallen below certain 

levels. 

Transit Time. Part 1145 would 

provide for the prescription of a 

reciprocal switching agreement to 

address deteriorating efficiency in Class 

I carriers’ movements, specifically when 

the incumbent rail carrier failed to meet 

an objective standard for consistency, 

over time, in the transit time for a line 

haul. This approach would promote the 

public interest by providing an 

incentive for carriers to maintain 

velocity through the rail system. This 

metric also helps to prevent the 

possibility that a rail carrier would 

increase the OETA for a shipment for 

the sole purpose of meeting the OETA 

performance standard—a practice that 

could obscure inadequate service. 

Industry Spot and Pull. Part 1145 

would provide for the prescription of a 

reciprocal switching agreement to 

address inadequate local service, 

specifically when the incumbent rail 

carrier has failed to meet an objective 

standard for completing the placement 

and removal of shipment at a shipper’s 

or receiver’s facility during a planned 

service window. As noted above, this 

local service is referred to as industry 

spot and pull or ISP. Failures to 

complete local work as scheduled 

impairs shippers’ ability to conduct 

their business and therefore impairs the 

public interest. (PRFBA Opening 

Comments 18, Dec. 17, 2021, First Mile/ 

Last Mile Serv., EP 767; Sweetener User 

Assoc. Comment 2, Apr. 18, 2022, 

Urgent Issues in Freight Rail Serv., EP 

770 (noting that issues with local 

service have forced companies to reduce 

production in key product lines and 

shut down manufacturing facilities).) In 

addition, because some OETAs are 

calculated based on constructive 

placement rather than actual placement, 

the ISP metric also captures aspects of 

service adequacy that might otherwise 

be missed. 

Through reliance on these three 

performance standards (OETA, transit 

time, and ISP), part 1145 would 

enhance implementation of section 

11102(c) and ultimately would help to 

advance the policies in section 10101. 

As suggested above, the application of 

objective performance standards for 

adequate rail service, as provided for in 

part 1145, would promote predictability 

and efficiency in regulatory proceedings 

thereunder, thereby reducing 

unnecessary regulatory costs and 

ultimately strengthening rail carriers’ 

incentive to provide adequate service. 

Part 1145 therefore would advance the 

policies in section 10101 of having a rail 

system that meets the public need, of 

ensuring effective competition among 

rail carriers, of minimizing the need for 

regulatory control, and of reaching 

regulatory decisions on a fair and 

expeditious basis. See 49 U.S.C. 

10101(1), (2), (4), (5), (14). 

Part 1145 would likewise enhance 

implementation of §§ 11102(c) and 

10101 by providing a minimum term for 

a prescribed reciprocal switching 

agreement. By establishing a minimum 

term, part 1145 would allow for more 

effective planning and investment both 

by rail customers and by alternate 

carriers, thereby encouraging their 

voluntary participation in providing 

service and promoting more workable 

opportunities for shippers. As discussed 

below, after the minimum term, the 

Board could terminate the prescription 

if the incumbent carrier demonstrates 

that it could meet the performance 

standards, for example by 

demonstrating that it consistently has 

been able to meet, over an appropriate 

period of time, the performance 

standards for similar traffic to or from 

the relevant terminal area. 

By more effectively addressing the 

public need for adequate rail service, 

and by doing so specifically through a 

clearer and more certain regulatory 

process, proposed part 1145 would 

appropriately supplement other 

statutory provisions and regulations 

governing common carriage and bills of 

lading. But the common carrier 

obligation and laws governing bills of 

lading also have other implications. For 

example, they provide for a private 

party to be compensated for losses 

incurred by that party. See 49 U.S.C. 

11101, 11706, 80111; 49 CFR part 1035, 

App. B. Thus, the common carrier 

obligation and laws governing bills of 

lading are, to some extent, concerned 

with private remedies against a railroad 

for past service failures. The Board 

recognizes that regulations with 

objective standards, even those that 

recognize and account for circumstances 

outside of a carrier’s control, implicitly 

value the benefits of certainty and 


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9For purposes of this NPRM and the proposed 

regulatory text, ‘‘affiliated companies’’ has the same 

meaning as ‘‘affiliated companies’’ in Definition 5 

of the Uniform System of Accounts (49 CFR part 

1201, subpart A). However, the Board seeks public 

comment as to whether its definition should also 

include third-party agents of a Class I carrier. 

10 Investigation of Adequacy of R.R. Freight Car 

Ownership, Car Utilization, Distrib. Rules & Pracs., 

1 I.C.C.2d 700, 702–03 (1985); Pa. Co. v. United 

States, 236 U.S. 351, 355–57 (1915); Chi., 

Indianapolis & Louisville Ry. v. United States, 270 

U.S. 287 (1926); Port of Portland v. United States, 

408 U.S. 811, 820 n.8 (1972); Colo. River W. Ry. v. 

Tex. & New Orleans R.R., 283 S.W.2d 768, 774 (Tex. 

Civ. App. 1955); Del. & Hudson Ry. v. Consol. Rail 

Corp., 366 I.C.C. 845, 846–47 (1982); Cent. States 

Enter., Inc. v. Seaboard Coast Line R.R., NOR 38891 

(ICC served May 15, 1984), aff’d sub nom. Cent. 

States Enter., Inc. v. I.C.C., 780 F.2d 664, 676 (7th 

Cir. 1985). 

11Rio Grande Indus., Inc.—Purchase & Related 

Trackage Rts.—Soo Line R.R., FD 31505, slip op. at 

10–11 (ICC served Nov. 15, 1989) (‘‘A ‘terminal 

area’ (as opposed to main line track) must contain 

and cannot extend significantly beyond recognized 

terminal facilities, such as freight or classification 

yards or team tracks, and a cohesive commercial 

area immediately served by those facilities’’); see 

also Golden Cat v. St. Louis S.W. Ry., NOR 41550, 

slip. op at 7 (STB served Apr. 25, 1996) (similar 

language). 

12The Board specifically seeks comment as to 

whether the reciprocal switching tariff of an 

alternate carrier applicable to shippers in the same 

area should be considered as evidence, and how to 

reconcile inconsistencies in railroad tariffs (e.g., 

instances in which one railroad lists a location as 

open to reciprocal switching and another railroad 

does not). 

13The Board describes these standards in Part I 

and provides examples illustrating them in 

Appendix A. 

14Under the proposed part 1145, the petitioner 

would need to be a shipper or receiver. Part 1147 

of the Board’s regulations also allows other rail 

carriers to petition for prescription of reciprocal 

clarity over a process that provides for 

a more open-ended and case-specific 

inquiry. Because of this trade-off, and 

the different and oftentimes more severe 

or rigid form of liability and 

intervention that would come with 

falling short under the common carrier 

obligation, the Board does not view it as 

appropriate to apply, or draw from, 

these proposed standards to regulate or 

enforce the common carrier obligation. 

See, e.g., State of Montana v. BNSF Ry., 

NOR 42124, slip op. at 7 (STB served 

Apr. 26, 2013); Granite State Concrete 

Co. v. STB, 417 F.3d 85, 92 (1st Cir. 

2005). 

As suggested above, the objective of 

part 1145 would be to facilitate future 

service by an alternate rail carrier 

(without mandating the use of alternate 

service) to help ensure that the 

transportation system as a whole meets 

the public need. Part 1145 would rely 

on evidence of past performance by the 

incumbent carrier to identify patterns of 

deficient service that, due to the level 

and duration of the deficiency, indicate 

the need for regulatory intervention in 

the public interest. Due to the specific 

purpose and form of regulatory 

intervention under part 1145, the 

performance standards set forth in this 

NPRM as constituting the standard for 

obtaining a reciprocal switching order 

from the Board are in no way to be 

construed as constituting standards by 

which a railroad’s compliance with the 

common carrier obligation under 

section 11101(a) is to be measured. In 

other words, a failure to comply with 

the performance standards under the 

proposed part 1145 does not, standing 

alone, establish a basis under other laws 

for seeking damages, or other remedies 

related to the common carrier 

obligation, for service problems. If the 

Board enacts part 1145, the Board does 

not intend the performance standards 

therein to serve as a standard for 

performance by rail carriers (whether as 

a baseline or as a cap) that would 

provide the basis for relief under laws 

of common carriage, for relief under 

laws that govern bills of lading, for 

prescribed access to an alternate rail 

carrier under part 1147, for the 

prescription of emergency service under 

part 1146, or for applying any other law. 

Beyond the opportunity to seek 

prescription of a reciprocal switching 

agreement under the proposed part 

1145, a shipper or receiver would 

continue to have the opportunity to seek 

prescription of a reciprocal switching 

agreement (or other forms of prescribed 

access, as applicable) under parts 1144 

and 1147. Part 1144 provides for 

prescribed access on a permanent basis 

when the competitive standards therein 

are met. Part 1147 would accommodate 

temporary relief from service issues that 

are not covered by the specific 

performance standards in part 1145. 

To implement part 1145, the Board 

would require Class I carriers to make 

certain data available to customers. As 

such, within seven days of a written 

request from a shipper or receiver, the 

incumbent rail carrier would be 

required to provide that customer all 

relevant individualized performance 

records necessary to bring a case at the 

Board (i.e., the historical records 

necessary to ascertain whether a carrier 

did not meet the OETA, transit time, 

and/or ISP standards). To assist the 

Board with general oversight, the agency 

also proposes to codify the collection of 

certain data concerning service, some of 

which is currently being provided on a 

temporary basis in Docket No. EP 770 

(Sub-No. 1). As a general matter, this 

material would also allow a reciprocal 

switching petitioner to compare its 

service to that of the industry or the 

incumbent carrier’s service on a system 

and regional level to see whether service 

problems are systemic and/or 

worsening. 

Part I: Availability of Service-Related 

Reciprocal Switching Under Proposed 

Part 1145 

A reciprocal switching agreement 

provides for the transfer of a rail 

shipment between Class I rail carriers or 

their affiliated companies 9 within the 

terminal area in which the shipment 

begins or ends its journey on the rail 

system. Reciprocal switching is merely 

incidental to a line haul.10 A terminal 

area is a commercially cohesive area in 

which two or more rail carriers 

undertake the local collection, 

classification, and distribution of 

shipments for purposes of line-haul 

service.11 A terminal area is 

characterized by multiple points of 

loading/unloading and yards for local 

collection, classification, and 

distribution. Pa. Co., 236 U.S. at 359; 

Midtec, 3 I.C.C.2d at 179; Golden Cat, 

NOR 41550, slip op. at 7. In case of a 

dispute under part 1145 over whether 

an area constituted a terminal area, the 

Board would consider evidence that the 

area met the foregoing description, 

including relevant evidence, such as 

whether the area was listed as a normal 

revenue interchange point in the 

Official List of Open and Prepay 

Stations issued by the Association of 

American Railroads through Railinc.12

Subject to the foregoing definition, a 

particular point of loading/unloading 

would not be the appropriate subject of 

a prescribed reciprocal switching 

agreement under part 1145, if the point 

is not, or using existing facilities 

reasonably could not be, integrated into 

the terminal area operations. Further, if 

an incumbent railroad and alternate 

railroad have an existing reciprocal 

switching arrangement in a terminal 

area, and the petitioner’s traffic is 

currently served within that same 

terminal area, the proposed operation 

would presumptively qualify for 

prescription of a reciprocal switching 

agreement and the incumbent railroad 

would bear a heavy burden of 

establishing why the proposed 

operation would not qualify, assuming 

that other conditions to the prescription 

were met. 

As discussed below, the Board would 

prescribe a reciprocal switching 

agreement under part 1145 when (1) the 

petitioner demonstrates that the 

incumbent Class I carrier failed to meet 

one of the performance standards in part 

1145 for the petitioner’s shipments over 

that lane; 13 (2) with respect to the lane 

of traffic that is the subject of the 

petition, the petitioner (a shipper or 

receiver 14) has practical physical access 


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switching agreement. Here, however, because 

application of the performance standards pertains 

to customer specific information, the Board 

proposes to limit eligible petitioners to shippers 

and receivers. 15The Board seeks public comment on whether 

such prescriptions should include a minimum level 

of switching service and, if so, whether the Board 

should establish a separate and specific penalty 

structure to be imposed on carriers that do not meet 

that level of service. 16A shipper’s tender of a bill of lading notifies 

the rail carrier that a shipment is ready for service. 

It is at that point that the rail carrier must provide 

the original estimated time of arrival, regardless of 

whether the carrier has physical possession of the 

shipment. Some rail carriers use the term ‘‘original 

trip plan’’ instead of the term ‘‘original estimated 

time of arrival.’’ For the sake of consistency and 

clarity, we would use only the term ‘‘original 

estimated time of arrival’’ (or OETA), as defined 

herein, for purposes of part 1145. In Docket No. EP 

770 (Sub-No. 1), the Board refers to this standard 

as ‘‘trip plan compliance’’ or TPC. 

17 Delivery occurs when the shipment actually 

arrives at the designated destination (meaning the 

final destination as specified in the bill of lading 

or, in the case of a joint-line movement, the 

interchange where the shipment is transferred to 

the interline carrier or its affiliate) or is 

constructively placed (meaning placed at a local 

yard that is convenient to the designated 

destination). For purposes of part 1145, 

constructive placement of a shipment at a local yard 

constitutes delivery only when (1) the recipient has 

the option, by prior agreement between the rail 

carrier and the customer, to have the rail carrier 

hold the shipment pending the recipient’s request 

for delivery to the designated destination and the 

recipient has not yet requested delivery or (2) the 

recipient is unable to accept delivery at the 

designated destination. 

18For purposes of part 1145, a lane is determined 

by the point of origin and the designated 

destination as well as by the commodity. Shipments 

of the same commodity that have the same point of 

origin and the same designated destination are 

deemed to travel over the same lane. This is the 

case without regard to which route(s) the rail carrier 

uses to move the shipments from origin to 

destination. In the case of an interline movement, 

the designated destination is the designated 

interchange. 

19The Board also discussed original estimated 

time of arrival as part of a rulemaking on demurrage 

billing. There, the Board found that use of original 

estimated time of arrival, as a means to identify 

when a rail carrier provided inadequate spacing 

between shipments, does not constitute a guarantee 

of delivery by the original estimated time of arrival. 

See Demurrage Billing Requirements, EP 759, slip 

op. at 18 (STB served Apr. 6, 2021). Here, as well, 

use of original estimated time of arrival does not 

constitute a guarantee. A guarantee might give a 

customer a cause of action against the rail carrier, 

whereas the prescription of a reciprocal switching 

agreement, based on a poor success rate relative to 

the original estimated time of arrival, is directed 

toward protecting the public interest in adequate 

rail service. Use of the original estimated time of 

arrival, as the basis for prescribing a reciprocal 

switching agreement, at the same time reflects the 

reasonable expectation that, when a Class I rail 

carrier or its affiliated company provides an original 

estimated time of arrival for a line haul, the carrier 

will customarily deliver freight in a manner 

consistent with that original estimated time of 

arrival. As discussed below, the industry spot and 

pull standard similarly reflects the reasonable 

expectation that a Class I rail carrier or its affiliated 

company would perform local service during the 

planned service window. 

20The Board notes that PRFBA suggested in 

another docket that the railroads should also 

provide on-time performance metrics based on their 

car trip plans, allowing a 24-hour delivery window, 

PRFBA Reply 4, Feb. 17, 2022, First Mile/Last Mile 

Serv., EP 767. 

to only one Class I carrier that can serve 

that lane; (3) the carrier fails to establish 

an affirmative defense; and (4) the 

prescription would be practicable.15 A 

prescription under part 1145 would 

facilitate a transfer within the terminal 

area as would enable an alternate carrier 

to provide line-haul service on behalf of 

the petitioner. The prescription would 

have a minimum term subject to 

renewal as discussed below. 

(1) Performance Standards 

The following performance standards 

would measure certain aspects of 

service by a Class I rail carrier or, for 

purposes of the industry spot and pull 

standard, an affiliated company that 

serves the relevant terminal area. These 

performance standards are to be uniform 

standards that employ terms that are 

defined by the Board, for consistent 

application across Class I rail carriers 

and their affiliated companies. 

(a) Service Reliability: Original 

Estimated Time of Arrival 

The service reliability standard would 

measure a Class I rail carrier’s success 

in delivering a shipment near its OETA, 

i.e., the estimated time of arrival that the 

rail carrier provided when the shipper 

tendered the bill of lading for 

shipment.16 The original estimated time 

of arrival would be compared to when 

the car was delivered to the designated 

destination.17 Application of the service 

reliability standard would be based on 

all shipments over a given lane 18 over 

12 consecutive weeks. The service 

reliability standard would thus promote 

the completion of line hauls near the 

original estimated time of arrival.19 The 

on-time completion of line hauls allows 

the shipper to conduct its operations on 

a timely basis while permitting effective 

coordination between rail service and 

other modes of transportation. 

As a starting point for possible 

percentages in the service reliability 

standard, the Board notes that in Docket 

No. EP 770 (Sub-No. 1) it directed 

BNSF, CSXT, NSR, and UP to provide 

an indicator and target for trip plan 

compliance (TPC) as well as weekly 

data measuring manifest service, unit 

trains, and intermodal traffic placed at 

destination 24 hours past OETA. Urgent 

Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1), slip op. 

at 4–6, item 7 (STB served May 6, 

2022).20 Although the carriers refer to 

the TPC indicator by different names 

and measure performance in different 

ways, these four carriers reported the 

below initial TPC metrics for manifest 

traffic (the largest category of nonintermodal traffic), initial six-month 

performance targets, and one-year 

performance targets. 

TABLE 1—WEEKLY PERCENTAGE OF MANIFEST SERVICE RAILCARS PLACED WITHIN 24 HOURS OF ORIGINAL ARRIVAL

ESTIMATE

Class I railroad 

Initial 

performance 

(05/13/2022) 21

(%) 

Initial 

6-month 

performance 

target 22

(%) 

1-Year 

performance 

target 23

(%) 

BNSF ............................................................................................................................. 54.1 63 65 

CSXT ............................................................................................................................. 69 80 82 

NSR ............................................................................................................................... 48 61 82 

UP .................................................................................................................................. 63 70 70 

While the Board recognizes that these 

figures are system averages, each of the 

four carriers required to submit service 

recovery plans has acknowledged that 

their service fell short of public 

expectations or needs during the time 

when the carriers reported their initial 

performance levels. The Board finds 

that the carriers’ performance levels 

during this challenged time are a 

reasonable starting point for setting 

standards for inadequate service and, as 

such, has used these levels to formulate 


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21See NSR Performance Data at Row 163, May 18, 

2022, Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1); UP Performance 

Data at Row 182, May 18, 2022, Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1); BNSF Performance Data at Row 163, May 18, 

2022, Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1); CSXT Performance 

Data at Row 163, May 18, 2022, Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1). 

22See Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1), slip op. at 5, 8, 11, 

13 (STB served Oct. 28, 2022). 

23See Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1), slip op. at 3–6 (STB 

served May 2, 2023). 

24 It is the Board’s understanding that unit trains 

run on trip plans that are based strictly on the 

expected running times for that type of train in each 

of the crew districts between origin and destination. 

Trip plans for unit trains therefore are not 

constructed in the same manner as trip plans for 

manifest traffic (less-than-trainload shipments). Due 

to operational differences, the arrival day or time 

of a unit train may not be the most critical 

performance measure, and measuring a carrier’s 

success in maintaining the velocity of a unit train 

over time would be a more effective measure than 

OETA. As indicated above, the Board seeks 

comments on this issue. 

25The Board would not expect for a gap to arise 

because the time of interchange of a shipment, 

whether that time is immediately accepted or 

agreed to by the receiving railroad or, rather, is 

settled after a dispute between the carriers, is the 

same for both carriers. 

proposals for potential performance 

standards under part 1145. 

One potential performance standard 

for part 1145 would be to ensure that at 

least 60% of shipments arrive within 24 

hours of the OETA. This percentage falls 

near the average manifest traffic 

performance levels that the largest 

carriers themselves regarded as not 

meeting public expectations (among 

other problems) and thus would serve as 

a useful indicator of adverse effects on 

the public interest. 

Another approach would be to set the 

success rate at 60% in delivering a 

shipment within 24 hours after the 

OETA during the first year following the 

effective date of the proposed part 1145. 

After the first year, the success rate 

would increase to 70% in delivering a 

shipment within 24 hours after the 

OETA. The Board seeks comment on 

whether, if it chooses this approach, the 

performance standard should be 

increased to an even higher level after 

the second year. By phasing in a higher 

success rate over time, the Board would 

be providing the Class I carriers with 

time to increase their work forces and 

other resources, as necessary, and/or 

modify their operations in order to meet 

the performance standards—the primary 

cause for poor service cited by the 

railroads during the Board’s Urgent 

Issues proceeding was staff shortages. 

Indeed, one of the principal purposes of 

this proposed rule is to incentivize 

carriers to provide shippers with more 

reliable service. 

The Board seeks comment on which 

approach to adopt. Stakeholders are also 

invited to comment more generally on 

the appropriate success rate for service 

reliability, including whether the 

proposed success rates would reflect the 

public need for adequate rail service 

and how use of the proposed success 

rates would affect the rail network. 

Shippers and receivers are further 

invited (1) to comment on how the 

proposed success rates would affect 

both their business operations and the 

likelihood that the shipper or receiver 

would file a petition under part 1145, 

and (2) to submit estimates as to what 

percentage of shippers (or traffic) overall 

is likely to be affected by the Board’s 

proposal. In particular, the Board seeks 

comment on whether the standard 

should initially be higher than 60% and 

on whether it should escalate the 

standard after an additional period of 

time to higher than 70%—e.g., to 75%— 

if it adopts an escalating standard for 

the success rate. The Board also 

specifically seeks comment on the grace 

period (i.e., the proposed 24-hour 

window past the OETA), whether that 

should be increased or decreased (e.g., 

0 or 48 hours), and—if it should 

change—what is the appropriate success 

rate associated with the suggested grace 

period. 

Types of service. The Board proposes 

to apply the service reliability (OETA) 

standard only to shipments that are 

moving in manifest service, not to unit 

trains. In the Board’s experience, 

deliveries of unit trains do not give rise 

to the same type of concerns with 

respect to meeting OETA. Nevertheless, 

the Board seeks comments on whether 

the better approach would be to apply 

the same or similar service reliability 

standard to unit trains as applied to 

manifest traffic.24

For manifest traffic, the on-time 

success rate in the service reliability 

(OETA) standard would refer to the 

percentage of shipments delivered to the 

agreed-upon destination within the 

applicable number of hours after the 

OETA. Upon request by the customer, to 

allow the customer to calculate readily 

whether the incumbent rail carrier met 

the service reliability standard, the 

incumbent carrier must give the 

customer, in a machine-readable format, 

the OETA for each shipment and a 

timestamp of when the shipment was 

delivered to the agreed-upon 

destination. 

For movements involving more than 

one rail carrier, the destination for the 

originating rail carrier would be 

considered the interchange location 

with the subsequent railroad. The 

reliability standard in part 1145 would 

measure the originating carrier’s success 

in delivering the shipment to that 

interchange location by the OETA that 

the originating carrier provided when 

the shipper tendered the bill of lading. 

The reliability standard in part 1145 

would separately apply to a subsequent 

rail carrier as to its portion of the trip, 

when the subsequent carrier or its 

affiliated company moved the shipment 

to its final destination in a terminal 

area. The subsequent carrier must issue 

an OETA to the shipper when the 

carrier receives the shipment at the 

interchange location, that is, when the 

subsequent carrier acknowledges 

physical receipt and control of the 

shipment. The Board may look to 

applicable interchange rules between 

carriers as to when this has occurred.25

Lanes. The service reliability standard 

generally would apply individually to 

each lane of traffic to/from the 

petitioner’s facility. Nonetheless, in 

certain circumstances, the Board would 

prescribe a reciprocal switching 

agreement that governs multiple lanes of 

traffic to/from the petitioner’s facility, 

each of which has practical physical 

access to only one Class I carrier that 

could serve that lane, when (1) the 

average of the incumbent rail carrier’s 

success rates for the relevant lanes falls 

below the applicable performance 

standard, (2) the Board determines that 

a prescription would be practical and 

efficient only when the prescription 

governs all of those lanes; and (3) the 

petition meets all other conditions to a 

prescription. The petitioner could 

choose which lanes to/from its facility 

to include in determining the 

incumbent rail carrier’s average success 

rate. 

For example, suppose that the Board 

adopts a minimum threshold of OETA 

+ 24 hours below 60% and a shipper 

has a lane to Destination A and a lane 

to Destination B. During a 12-week 

period the 10-car shipment to 

Destination A has an on-time success 

rate of 50% and the five-car shipment to 

Destination B has an on-time success 

rate of 61%. The average of the 15 cars 

falls below the on-time success rate 

threshold of 60% during the 12-week 

period. If the switch would only be 

practicable and efficient if all cars 

shipped to Destination A and B were 

switched to the alternate carrier, and all 

other requirements were satisfied, the 

shipper could argue that cars for both 

destinations should be switched even 

though traffic moving to Destination B 

is above the proposed service standard. 


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26At the April 2022 hearing in Docket No. EP 

770, several shippers testified about the burdens 

associated with increased transit times. See, e.g., 

Hr’g Tr. 73:7–13, Apr. 26, 2022, Urgent Issues in 

Freight Rail Serv., EP 770 (Brock Lautenschlager 

testifying that rail service deterioration since the 

fourth quarter of 2021 resulted in a 15% increase 

in transit time for Cargill’s private fleet); Hr’g Tr. 

364:18 to 367:15, Apr. 26, 2022, Urgent Issues in 

Freight Rail Serv., EP 770 (David Burchett testifying 

that increased transit days resulting from rail 

service issues ‘‘has had a huge financial impact’’ on 

Molson Coors); Hr’g Tr. 551:6–8, Apr. 27, 2022, 

Urgent Issues in Freight Rail Serv., EP 770 (Ross 

Corthell of the National Industrial Transportation 

League testifying that ‘‘transit times in the first 

quarter this year have increased by 15 percent over 

pre-pandemic levels due to crew and power 

shortages’’); Hr’g Tr. 558:12–18, Apr. 27, 2022, 

Urgent Issues in Freight Rail Serv., EP 770 (Julie 

Landry of Government Affairs for the American 

Forest and Paper Association testifying that, since 

the fourth quarter of 2020, one member company 

‘‘experienced significant deterioration in rail 

service’’ including transit times that increased by 

six days and variability of transit that made it 

‘‘impossible for shippers to plan their business’’). 

27The Board recognizes that, if it were to 

prescribe a reciprocal switching agreement based on 

the incumbent rail carrier’s failure to meet the ISP 

standard, the incumbent rail carrier would continue 

to provide local service to the petitioner; the 

prescription of a reciprocal switching agreement 

would simply facilitate alternate line-haul service 

to the petitioner. While that remedy might serve as 

an incentive for the incumbent rail carrier to 

provide adequate local service, the Board is 

considering whether the prescription of terminal 

trackage rights under 49 U.S.C. 11102(a) would be 

a more appropriate remedy for failure to meet the 

ISP standard. Upon the prescription of terminal 

trackage rights, the incumbent rail carrier would be 

replaced in providing local service, whereas under 

a reciprocal switching agreement the carrier could 

be replaced in providing line-haul service. The 

Board seeks comment on whether it should provide 

for the prescription of terminal trackage rights for 

failure to meet the ISP standard, either in place of 

a separate path to a prescription of a reciprocal 

switching agreement in those circumstances or as 

an additional path that would be open to the 

petitioner. 

28The Board notes that certain misses caused by 

embargoes would be covered by various affirmative 

defensives, discussed infra (e.g., extraordinary 

circumstances such as floods, a bridge collapse, 

etc.). To be clear, as it pertains to the Board’s other 

authorities, the Board will not determine the 

legality of an embargo based on whether a railroad 

qualifies for an affirmative defense. 

(b) Service Consistency: Transit Time 

The service consistency standard 

would measure a rail carrier’s success in 

maintaining, over time, the carrier’s 

efficiency in moving a shipment 

through the rail system. As discussed 

below, the service consistency standard 

would also apply separately to the 

return of empty private and shipperleased railcars. For a loaded car, the 

service consistency standard would be 

based on the average transit time for 

shipments over the relevant lane during 

a 12-week period, where transit time is 

the time between the shipper’s tender of 

the bill of lading and the rail carrier’s 

delivery of the shipment at the agreedupon destination. The relevant point of 

origin and destination and the relevant 

time stamps would be the same as for 

purposes of the service reliability 

(OETA) standard. Transit time would 

not include time spent loading or 

unloading a shipment. 

A rail carrier’s compliance with the 

service consistency standard would be 

determined by comparing (A) the 

average transit time for shipment over a 

period of 12 consecutive weeks to (B) 

the average transit time for the same 

shipment over the same 12-week period 

during the previous year. As with the 

service reliability standard, the Board’s 

inquiry under the service consistency 

standard would extend to any 

consecutive period of 12 weeks. 

Significant deteriorations in transit time 

impair shippers’ interests as well as the 

public interest by creating longer lag 

times in getting products to market and/ 

or in businesses’ receipt of needed 

resources and/or empty cars. 

Based on its understanding of the rail 

network and available data,26 the Board 

proposes that, for loaded manifest cars 

and loaded unit trains, a petitioner 

would need to demonstrate that the 

average transit time for a shipment 

increased by either 20 or 25% (to be 

determined in the final rule) over the 

average transit time for the same 12- 

week period during the previous year. 

Deliveries of empty system cars and 

empty private cars could also result in 

the prescription of a reciprocal 

switching agreement for the 

corresponding outgoing traffic. The 

Board specifically seeks comment on 

what level of increase in transit time 

should be the standard and whether the 

Board should adopt a different standard 

that also captures prolonged transit time 

problems, to the extent any such service 

inadequacy would not also be identified 

by poor performance under the OETA or 

ISP metrics. 

Multi-Carrier Moves and Lanes. For 

the transit time standard, multi-carrier 

movements and lanes would be treated 

the same as under the service reliability 

standard. For multi-carrier movements, 

the destination for the upstream carrier 

would be treated as the interchange 

location with the subsequent railroad. In 

addition, as with the service reliability 

standard, the Board could in certain 

circumstances prescribe a reciprocal 

switching agreement for multiple lanes 

based on the average success rates in 

maintaining transit times. 

Empties. The Board proposes to apply 

the service consistency standard to 

deliveries of empty private and shipperleased railcars. If a rail carrier failed to 

meet the service consistency standard in 

delivering empty private and shipperleased cars, and if all other conditions 

to a prescription are met, the Board 

would prescribe a reciprocal switching 

agreement that would govern the 

customer’s outgoing traffic from the 

point at which the cars were to be 

delivered. While proposing to apply the 

service consistency standard to 

deliveries of empty private and shipperleased railcars, the Board seeks 

comment on whether there would be 

data available to accommodate that 

application. 

(c) Inadequate Local Service: Industry 

Spot and Pull 

The third performance standard— 

ISP—would measure a rail carrier’s 

success in performing local deliveries 

(‘‘spots’’) and pick-ups (‘‘pulls’’) of 

loaded railcars and unloaded private or 

shipper-leased railcars during the 

planned service window. As noted 

above, the need for the industry spot 

and pull standard arises because, in 

many cases, the arrival time for a line 

haul means that the shipment has been 

constructively placed, without the 

shipment having actually arrived at the 

designated destination. For this reason, 

‘‘last mile’’ performance would not 

necessarily be reflected in determining 

compliance with the service reliability 

standard under part 1145. The ISP 

standard would serve to determine the 

adequacy of rail service in those cases.27

Under part 1145, a rail carrier would 

fail the ISP standard if the carrier had 

a success rate of less than 80%, over a 

period of 12 consecutive weeks, in 

performing local deliveries and pick-ups 

during the planned service window. 

The success rate would compare (A) the 

number of planned service windows 

during which the carrier successfully 

completed the requested placements or 

pick ups to (B) the number of planned 

service windows for which the shipper 

or receiver, by the applicable cut-off 

time, requested a placement or pick-up. 

The carrier would be deemed to have 

missed the planned service window if 

the carrier did not pick up or place all 

of the cars requested by the shipper or 

receiver by the applicable cut-off time. 

This would include situations in which 

the carrier has ‘‘embargoed’’ the shipper 

or receiver as a result of congestion or 

other fluidity issues on the carrier’s 

network, which results in reduced 

service to the shipper or receiver.28 The 

Board proposes the 80% standard 

informed by data submitted in Docket 

No. EP 770 (Sub-No. 1). Although the 

carriers refer to industry spot and pull 


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29See NSR Performance Data at Row 78, May 18, 

2022, Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1); UP Performance 

Data at Row 97, May 18, 2022, Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1); BNSF Performance Data at Row 78, May 18, 

2022, Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1); CSXT Performance 

Data at Row 78, May 18, 2022, Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1). 

30See NSR Interim Update, Dec. 2, 2022, Urgent 

Issues in Freight Rail Serv.—R.R. Reporting, EP 770 

(Sub-No. 1); UP Amended Serv. Recovery Plan, June 

3, 2022, Urgent Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1); BNSF Interim 

Updates, May 5, 2023, Urgent Issues in Freight Rail 

Serv.—R.R. Reporting, EP 770 (Sub-No. 1); CSXT 

Interim Update, Dec. 2, 2022, Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1). 

31As noted by one shipper in Docket No. EP 767: 

By CSXT’s own measure, it is performing at only 

a 76% switch rate versus its schedule and 87% car 

accuracy. It starts to impact the plant when the 

numbers get below 80% of switches performed. 

Moreover, GMI has rarely received its Saturday 

switch over the last six months. CSXT has 

explained this poor service is occurring due to crew 

shortages. Like at the Ohio plant, this poor service 

has caused production interruptions and labor 

utilization issues from the lack of ingredients due 

to poor switching service. GMI estimates this poor 

service can result in at least $200,000 per day in 

damages, conservatively. 

PRFBA Opening Comments 18, Dec. 17, 2021, 

First Mile/Last Mile Serv., EP 767. 

indicators by different names (e.g., Local 

Operating Plan Adherence or LOPA) 

and measure performance in different 

ways, these four carriers first reported 

ISP metrics and interim targets for 

manifest traffic as follows: 

TABLE 2—INDUSTRY SPOT & PULL

Measure Class I railroad 

Initial performance 

(system) 

05/13/2022 29

(%) 

Interim target 30

(%) 

Local Service Performance ................................................................ BNSF .............................. 88.2 91 

FMLM ................................................................................................. CSXT .............................. 83.0 87 

Local Operating Plan Adherence ....................................................... NSR ................................ 74.1 78

FMLM ................................................................................................. UP ................................... 91.0 91 

While the Board recognizes that these 

figures are system averages, each of the 

four carriers that were required to 

submit service recovery plans have 

acknowledged that their service fell 

short of expectations during the time 

when the carriers reported their initial 

performance levels. As such, these 

averages are a reasonable starting point 

for setting standards for poor or 

inadequate local service. Evidence from 

Docket No. EP 767 also indicates that 

ISP around this level can adversely 

affect a shipper.31 As with the service 

reliability standard, however, the Board 

requests stakeholders and shippers/ 

receivers to provide evidence and 

comment on the appropriateness of this 

percentage and whether it should be 

higher or lower. 

For purposes of the ISP standard 

under part 1145, a rail carrier would be 

deemed to provide local service during 

the planned service window if (1) the 

shipper or receiver ordered a shipment 

to be placed or picked up before the cutoff time for that service window, and (2) 

the carrier provided the requested 

service during that window. 

As an example, in the case where a 

rail carrier offers a service window for 

a customer on Monday, Wednesday, and 

Friday, the ISP ratio would be as follows 

during a twelve-week period, depending 

on the fact pattern (i.e., type of misses): 

(1) Customer requested service by the 

cut-off time for 36 service windows over 

a 12-week period and received the 

requested service during 30 of those 36 

windows. The resulting ISP ratio is 

83.3% (30/36). 

(2) Customer requested service by the 

cut-off time for 36 service windows over 

a 12-week period, and for 28 of those 

windows, received service during the 

requested window. On two occasions, 

the carrier provided service during a 

different window, a day later than the 

requested window. The resulting ISP 

ratio is 77.8% (28/36). 

(3) Customer requested service by the 

cut-off time for 36 service windows over 

a 12-week period and each time 

received service on the same day as 

requested. But, on ten of those 

occasions, the service was provided 

outside of the 12 hours that, for purpose 

of part 1145, constitute a service 

window. The resulting ISP ratio is 

72.2% (26/36). 

(4) Customer requested service by the 

cut-off time for 36 service windows over 

a 12-week period and received 

placements of the requested shipments 

during each of those windows. But, 

during 10 of the 36 planned service 

windows, the carrier failed to pull cars 

as requested by the customer. The 

resulting ISP ratio is again 72.2% (26/ 

36). 

In applying the ISP standard, the 

Board proposes to use a standardized 

service window of 12 hours (the 

maximum duration that a crew is 

allowed to work), starting from the 

relevant serving crew’s scheduled onduty time. However, the Board is 

concerned that a carrier could change 

the scheduled on-duty time on short 

notice and thereby evade the impact of 

the ISP standard. The Board therefore 

seeks comment from stakeholders on 

whether a carrier should be required to 

provide notice before changing the 

serving crew’s schedule on-duty time— 

at least for the purposes of regulatory 

measurement—and, if so, how much 

notice should be required. In addition, 

the Board seeks to avoid any 

implication or encouragement that a 

carrier with a service window shorter 

than 12 hours ought to expand its 

window. The carrier would receive no 

regulatory advantage for doing so, and 

nothing in this proposal would prohibit 

a carrier from maintaining one window 

for its business purposes and another for 

the purposes of regulatory 

measurement. Nonetheless, considering 

the administrative overlap, the Board 

seeks comment on whether a 

standardized window would create 

adverse regulatory incentives and, if so, 

how best to avoid or minimize any 

adverse incentives. 

As an alternative to using a standard, 

12-hour service window, the Board 

seeks comment on whether it should 

use the service window that the rail 

carrier specified according to the 

carrier’s established protocol, subject to 

two considerations. As noted, the Board 

is concerned that a carrier could change 

its service window on short notice and 

thereby evade the impact of the ISP 

standard. The Board therefore seeks 

comment from stakeholders on whether 

a carrier should be required to provide 

notice before changing a service 

window and, if so, how much notice 

should be required. The Board is also 

concerned that a carrier could 

unreasonably expand the duration of a 

service window as a means to evade 

meaningful measurement under the ISP 

standard. Accordingly, under the 

alternative to using a standard, 12-hour 

service window, the Board would use 

the window specified by the carrier not 

to exceed 12 hours in duration; under 


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32 If a case were filed alleging a failure to meet 

the 90% standard, the railroad would have the 

burden of showing that there were shipper/receiver 

projections, sound economic reasoning, or 

historical evidence that justify the expectation that 

there would be a decrease in demand. 

this approach, a carrier would be 

deemed to perform local service within 

the relevant period only if the carrier 

performed the service within the 

window specified by the carrier 

according to its customary established 

protocol, provided that the window did 

not exceed 12 hours (the maximum 

duration that a crew is allowed to work). 

Although this approach would allow up 

to a 12-hour window for purposes of 

part 1145, this approach would not 

constitute permission or encouragement 

for carriers to adjust their service 

window operating protocols in the 

ordinary course of business up to 12 

hours, if their normal protocol has been 

a shorter window. 

A job that was canceled/annulled by 

the carrier would be counted as a miss 

in calculating compliance with the ISP 

standard, as none of the requested work 

would have been completed, unless 

another crew completed the requested 

work within the original window. A 

placement would not be considered 

completed if the customer does not have 

working access to the placed shipment. 

A miss not caused by the incumbent 

railroad would not be counted against it. 

The burden is on the carrier to provide 

the reason for the miss and prove that 

the miss was not caused by the carrier. 

If a carrier unilaterally chooses to 

reduce the frequency of the local work 

that it makes available to a customer, 

based on considerations other than a 

commensurate drop in customer 

demand, then the standard would 

become 90% for a period of one year.32

The test for applying this increased 

standard would look at the number of 

service windows that the carrier 

regularly makes available; the intent is 

not to create disincentives for carriers to 

accommodate shippers’ needs by 

offering more frequent service windows 

during periods of seasonal or unusual 

demand by the shipper. A party may 

bring evidence and argument as to 

whether such circumstances invalidate 

use of the higher 90% ISP standard. 

Stakeholders are invited to comment on 

this exception and whether a reduction 

in the frequency of local work by the 

carrier should provide the basis for 

prescribing a reciprocal switching 

agreement regardless of the carrier’s 

success rate in performing local service. 

(2) Practical Physical Access to Only 

One Class I Carrier 

To obtain prescription of a reciprocal 

switching agreement under part 1145, 

the petitioner would need to show that, 

for the lane of traffic that is the subject 

of the petition, the shipper or receiver 

has practical physical access to only one 

Class I rail carrier that could serve that 

lane. Consistent with what the Board 

noted when adopting parts 1146 and 

1147, the Board expects, as a general 

rule, that there would be little benefit 

from prescribing reciprocal switching 

agreements for petitioners that have 

practical physical access to another 

Class I carrier that is capable of 

handling their service needs. Expedited 

Relief for Serv. Inadequacies, 3 S.T.B. at 

978. Although the Board’s regulations 

do not foreclose a prescription under 

part 1146 or 1147 if the petitioner can 

already reach another Class I carrier, in 

case neither of those carriers is 

providing adequate service, the Board 

proposes here to require the petitioner 

to show that, for the lane that is (or 

lanes that are) the subject of the 

petition, the petitioner has practical 

physical access to only one Class I 

carrier that could serve that lane. A 

clear standard provides more certainty 

to a shipper or receiver considering 

whether to file a petition for relief. 

For purposes of part 1145, ‘‘practical 

physical access’’ refers to a feasible 

shipping opportunity on a rail carrier, 

whether directly or through that 

carrier’s affiliated company. A 

petitioner could have practical physical 

access to more than one Class I carrier 

(for the lane of traffic that is the subject 

of the petition) by any of several means. 

First, a petitioner could have practical 

physical access to more than one Class 

I carrier if the petitioner’s facility is 

served directly by multiple Class I 

carriers or their affiliated companies, 

each of which could serve the relevant 

lane of traffic. Second, a petitioner 

could have practical physical access to 

more than one Class I carrier by virtue 

of an existing reciprocal switching 

arrangement that governs shipping to/ 

from the shipper’s facility. Third, a 

petitioner could have practical physical 

access to more than one Class I carrier 

by virtue of other types of arrangements, 

such as terminal trackage rights or a 

contract between a local rail carrier and 

an alternate rail carrier. The Board 

would consider these and other 

circumstances on a case-by-case basis. 

In assessing whether a petitioner has 

practical physical access to more than 

one Class I carrier, the Board would 

consider independently the lanes at 

issue in the shipper’s or receiver’s 

petition, even if other lanes at the 

facility had practical physical access to 

another carrier. For example, if an 

existing reciprocal switching 

arrangement provides for switching for 

only one of several lanes at the shipper’s 

facility, the Board would not regard the 

shipper as having practical physical 

access for the closed lanes. The shipper 

would be eligible to seek a prescription 

for any of those closed lanes (or for 

multiple closed lanes, as discussed 

above) notwithstanding that one lane at 

the shipper’s facility was open. 

The Board would also consider 

limitations that are part of an existing 

arrangement. For example, if an existing 

reciprocal switching arrangement 

provides for the switching of shipments 

on behalf of a shipper—but only for 

shipments between the shipper’s facility 

and another location that the incumbent 

carrier does not serve—the Board would 

not regard the arrangement as 

establishing practical physical access to 

more than one Class I carrier for 

purposes of a prescription under part 

1145. The shipper would be eligible to 

seek a prescription under part 1145 

notwithstanding that the shipper’s 

facility was already open to switching 

for purposes that were irrelevant to the 

shipper’s petition. The foregoing is just 

one example; there could be other 

limitations that would preclude an 

existing arrangement from providing 

practical physical access to more than 

one Class I carrier for purposes of part 

1145. The Board would evaluate 

limitations on a case-by-case basis. 

The Board proposes that a petitioner 

could establish a prima facie showing 

by submitting a verified statement from 

an appropriate official attesting that it 

does not have practical physical access 

to more than one Class I carrier, taking 

into account the potential types of 

practical physical access described 

above. See Mkt. Dominance Streamlined 

Approach, EP 756, slip op. at 17 (STB 

served Aug. 3, 2020). 

The Board proposes to limit 

prescriptions under part 1145 to 

situations in which the incumbent 

carrier is a Class I carrier or, for 

purposes of the industry spot and pull 

standard, an affiliated company that 

serves the relevant terminal area. The 

service data the Board has been 

examining in Docket No. EP 770 (SubNo. 1) has been focused on Class I 

carriers. The Board has not received as 

many informal or formal complaints 

about smaller carriers. Moreover, data 

collection may be more burdensome for 

Class II and Class III carriers, as they 

have not been submitting service-related 

data to the Board under performance 

metrics dockets, such as Docket Nos. EP 


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33A shipper’s notification of an anticipated surge 

does not necessarily entitle the shipper to receive 

that level of service. 

724 (Sub-No. 4) and EP 770 (Sub-No. 1). 

Nevertheless, the Board seeks comment 

from stakeholders on whether its new 

part 1145 should be broadened to 

include Class II and Class III carriers 

who are providing inadequate service. 

(3) Other Matters 

(a) Negotiations 

Similar to 49 CFR 1144.1, at least five 

business days prior to seeking the 

prescription of a reciprocal switching 

agreement, the petitioner that intends to 

initiate such action must first seek to 

engage in good faith negotiations to 

resolve its dispute with the incumbent 

carrier. 

(b) Case Timeline and Alternate Carrier 

Service 

Simultaneous with its petition for 

relief, a shipper or receiver must file a 

motion for protective order. In its 

petition for relief, a shipper or receiver 

must confirm that it attempted good 

faith negotiations, identify the 

performance standard the railroad failed 

to meet over the requisite period of 

time, and provide evidence supporting 

its claim. The petitioner must also 

identify the potential alternate carrier 

and include both carriers’ reciprocal 

switching publications. Additionally, it 

must serve its petition on the incumbent 

carrier, the alternate carrier, and the 

Federal Railroad Administration. 

A reply from the incumbent carrier is 

due 20 days after the petition for relief 

is filed, and a rebuttal from the 

petitioner may be filed 20 days after the 

incumbent carrier files its reply. The 

Board’s target for issuing an order 

addressing the petition is 90 days after 

the petition is filed. 

Under section 11102(c)(1), the 

affected rail carriers are responsible for 

establishing the terms and conditions 

that apply to prescribed reciprocal 

switching agreement, including 

compensation, provided that the carriers 

establish those terms within a 

reasonable period. Here, the Board 

expects that 30 days would be a 

reasonable period for the carriers to 

reach agreement on compensation, 

particularly in light of the Board’s 

indication below of the possible 

approaches to compensation that the 

Board would take. Part 1145 therefore 

would provide for the carriers to reach 

agreement and to offer service under the 

prescribed agreement within 30 days of 

the prescription. The relevant location 

would also need to be included in the 

appropriate disclosure under 49 CFR 

part 1300. The carriers would have an 

additional 10 days after offering service 

to notify the Board that the agreement 

had taken effect. If the affected carriers 

could not agree on compensation within 

30 days of the service of the 

prescription, then the affected rail 

carriers would be required (i) to offer 

service and (ii) to petition the Board to 

set compensation. As is the case with 

terminal trackage rights, a petition to the 

Board to set compensation is sufficient 

to allow service to begin while the 

compensation issues are pending. See S. 

Pac. Transp. Co. v. ICC, 736 F.2d 708, 

723–24 (D.C. Cir. 1984). 

(c) Affirmative Defenses 

An incumbent rail carrier shall be 

deemed not to fail a performance 

standard under (1)(a), (1)(b), or (1)(c), 

above, if the carrier establishes an 

affirmative defense. If the incumbent 

carrier makes such a showing, the Board 

would not prescribe a reciprocal 

switching agreement. A carrier’s 

intentional reduction or maintenance of 

its workforce at a level that itself causes 

workforce shortage, or, in the event of 

a workforce shortage, failure to use 

reasonable efforts to increase its 

workforce, would not, on its own, be 

considered a defense for failure to meet 

any performance standard. Similarly, a 

carrier’s intentional reduction or 

maintenance of its power or car supply, 

or failure to use reasonable efforts to 

maintain its power or car supply, that 

itself causes a failure of any 

performance standard would not, on its 

own, be considered a defense. For any 

affirmative defense, the carrier would 

have the burden of proof. Affirmative 

defenses that do not fit within the 

categories below would be evaluated by 

the Board on a case-by-case basis. The 

Board seeks comment on what other 

affirmative defenses, if any, should be 

specified in the final rule. 

Extraordinary Circumstances. The 

Board would not prescribe a reciprocal 

switching agreement if the incumbent 

carrier demonstrates that its service 

levels were significantly affected by 

extraordinary circumstances beyond a 

carrier’s control. The Board would 

consider extraordinary circumstances to 

be the type of events that permit a 

railroad to qualify for an emergency 

trackage rights exemption at 49 CFR 

1180.2(d)(9). See Pet. for Rulemaking— 

R.R. Consol. Proc. Exemption for 

Emergency Temp. Trackage Rts., EP 282 

(Sub-No. 21) (STB served Nov. 30, 

2021). As explained in Docket No. EP 

282 (Sub-No. 21), these events include 

unforeseen track outages stemming from 

natural disasters, severe weather events, 

flooding, accidents, derailments, and 

washouts. Id. at 6; Pet. for Rulemaking— 

R.R. Consol. Proc. Exemption for 

Emergency Temp. Trackage Rts., EP 282 

(Sub-No. 21), slip op. at 5 (STB served 

May 28, 2021). The railroad must 

demonstrate that the event is the 

principal cause precipitating the service 

issue; the event cannot be non-causal 

(e.g., minor or tangential). 

Surprise Surge. The Board would not 

prescribe a reciprocal switching 

agreement if the incumbent rail carrier 

demonstrates that there was a surprise 

surge in the petitioner’s traffic, meaning 

a significant increase in traffic to which 

the petitioner should have alerted the 

carrier but did not do so. For nonseasonal traffic, a surprise surge would 

occur when the shipper’s traffic 

increased by 20% or more in 12 weeks, 

compared to the 12 weeks before that, 

and the shipper did not provide written 

notice to the railroad at least 12 weeks 

before the surge. For seasonal traffic, 

such as agricultural shipments, 

applicable surges would be those where 

the petitioner’s traffic increased 20% or 

more as compared to the same 12-week 

period during the previous year and 

where the shipper did not give written 

notice to the railroad of the surge at 

least 12 weeks before the increase 

occurred. The written notice shall 

clearly specify a reasonable estimate of 

the anticipated traffic.33 The Board 

seeks comment on whether 20% and the 

12-week notice period are reasonable, 

and whether (and, if so, how) the Board 

should consider any history of the 

shipper notifying the carrier of surges 

that did not come to fruition. 

Highly Unusual Shipment Patterns. 

The Board would not prescribe a 

reciprocal switching agreement if the 

incumbent carrier demonstrates that the 

shipper’s traffic during the relevant 12- 

week period exhibited a pattern that, for 

that shipper, was highly unusual. For 

example, a pattern might be considered 

highly unusual if a shipper projected 

traffic of 120 cars in a month and 30 

cars per week, but the shipper had a 

plant outage for three weeks and then 

requested shipment of 120 cars in a 

single week. What constitutes ‘‘highly 

unusual’’ would vary from case to case 

depending upon the characteristics of 

the traffic. A pattern could be highly 

unusual for this purpose even in the 

absence of a surprise surge as described 

above. 

Delays Caused by Dispatching 

Choices of a Third Party. The Board 

would not prescribe reciprocal 

switching if the incumbent carrier 

demonstrates that its failure to meet the 

relevant performance standard was 

caused by third-party dispatching. For 


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34 In seeking comments on compensation under 

part 1145 as proposed herein, the Board notes that 

this iteration differs substantially from the proposal 

in the 2016 NPRM. Due to the substantial 

differences, many of the comments on 

compensation that were provided in response to the 

2016 NPRM do not apply here. The Board seeks 

comments here only on compensation when (1) the 

prescribed reciprocal switching agreement 

facilitates the transfer of a shipment to an alternate 

rail carrier within a given terminal area, for the 

purpose of allowing the alternate carrier to provide 

line-haul service for that shipment; and (2) the basis 

for the prescription is the incumbent rail carrier’s 

failure to provide adequate rail service. If comments 

on the 2016 NPRM are helpful in that particular 

regard, then the commenting party is encouraged to 

provide a brief summary of those comments. 

example, if a passenger rail entity 

controlling dispatching halted freight 

traffic for an extended time, and that 

delay caused the railroad to fail to meet 

the standard, the Board would not 

prescribe reciprocal switching. 

(d) Practicability 

Because switching service (transfers 

between carriers) under a prescribed 

reciprocal switching agreement would 

occur within a terminal area, in the 

context of integrated operations or 

operations that could reasonably 

become integrated, there is reason to 

believe that those agreements would be 

practicable under section 11102(c). 

Should a legitimate practicability 

concern arise, however, the Board 

would consider whether the switching 

service could be provided without 

unduly impairing the rail carriers’ 

operations. The Board would also 

consider an objection by the alternate 

rail carrier or incumbent rail carrier that 

the alternate rail carrier’s provision of 

line-haul service to the petitioner would 

be infeasible or would unduly hamper 

the objecting rail carrier’s ability to 

serve its existing customers. The 

objecting rail carrier would have the 

burden of proof of establishing 

infeasibility or undue impairment. 

(e) Exempt Traffic 

The Board notes that some 

transportation that has been exempted 

from Board regulation pursuant to 49 

U.S.C. 10502 could be subject to an 

order providing reciprocal switching 

under part 1145. The Board retains full 

jurisdiction to deal with exempted 

transportation, which includes 

considering whether service received by 

the petitioner prior to filing the petition 

meets the performance standards under 

this proposed part. This practice is 

consistent with Board precedent. 

Further, it is well established that the 

Board can revoke the exemption at any 

time, in whole or in part, under section 

10502(d). Sanimax USA, LLC v. Union 

Pac. R.R., NOR 42171, slip op. at 4 (STB 

served Feb. 25, 2022); Pyco Indus.—Alt. 

Rail Serv.—S. Plains Switching, FD 

34889, slip op. at 5–6 (STB served Nov. 

21, 2006); G&T Terminal Packaging Co. 

v. Consol. Rail Corp., 830 F.2d 1230, 

1235 (3d Cir. 1987), cert. denied, 485 

U.S. 988 (1988). The Board would do so 

to the extent required. 

(f) Contract Traffic 

As to traffic that is the subject of a rail 

transportation contract under 49 U.S.C. 

10709, section 10709(c)(1) generally 

prohibits challenges to a valid contract 

between a rail carrier and a shipper, as 

well as challenges to transportation 

performed pursuant to such a contract. 

49 U.S.C. 10709(c)(1); see also H.B. 

Fuller Co. v. S. Pac. Transp. Co., 2 

S.T.B. 550, 553 (1997) (the statute 

‘‘remove[s] transportation under a rail 

contract from any subsequent regulatory 

review’’). The Board seeks comment on 

whether, and under what 

circumstances, the Board has the 

authority to consider reciprocal 

switching requests from shippers that 

have entered into a valid rail 

transportation contract with the 

incumbent carrier. While the Board 

welcomes comment on all legal and 

policy issues relevant to this question, 

the Board also specifically seeks 

comment on two issues. 

First, the Board seeks comment on 

whether the Board may consider the 

performance data described above, 

based on service that a carrier provided 

by contract, as the grounds for 

prescribing a reciprocal switching 

agreement that would become effective 

after the contract expired. The Board 

also seeks comment on whether the 

Board may require a carrier to provide 

performance metrics to a rail customer 

during the term of a contract upon that 

customer’s request. 

Second, the Board seeks comment on 

when, prior to the expiration of a 

transportation contract between the 

shipper and the incumbent carrier, the 

Board may prescribe a reciprocal 

switching agreement that would not 

become effective until after the contract 

expires. The United States Court of 

Appeals for the District of Columbia 

Circuit, in applying statutory language 

in effect prior to the enactment of the 

ICC Termination Act of 1995, held in 

1996 that the Board was not authorized 

to order a carrier to file a common 

carrier tariff ‘‘more than a year before 

contract service was expected to end.’’ 

Burlington N. R.R. v. STB (Burlington 

Northern), 75 F.3d 685, 687 (D.C. Cir. 

1996) (examining former 49 U.S.C. 

10762, which required that rail carrier 

tariffs be filed with the agency). The 

Board later indicated that it did not 

interpret Burlington Northern as 

preventing the Board ‘‘from ordering the 

establishment of a rate that is needed 

within a matter of weeks’’ rather than 

years. FMC Wyo. Corp. v. Union Pac. 

R.R., FD 33467, slip op. at 3 n.7 (STB 

served Dec. 16, 1997). Although 

Burlington Northern is not directly 

applicable here, given that it examined 

different statutory language and 

pertained to a different form of (and 

basis for) intervention, the Board seeks 

comment on what legal or policy issues 

should similarly be considered 

regarding the prescription of reciprocal 

switching prior to the expiration of a 

transportation contract that governs the 

traffic that would be switched even if 

the prescription would not become 

effective until after the expiration of the 

contract. Specifically, must the Board 

wait until the contract has actually 

expired before considering and ruling 

on a petition for prescription of 

reciprocal switching, or may the Board, 

prior to contract expiration, grant a 

prescription that would not go into 

effect until after expiration? If the latter, 

should the Board specify a maximum 

time period prior to contract expiration 

when petitions for prescription of a 

reciprocal switching agreement would 

be entertained? 

(g) Compensation 

The Board seeks comments on two 

methodologies for setting fees under a 

prescribed reciprocal switching 

agreement under part 1145, if the 

affected rail carriers fail to reach 

agreement on compensation within a 

reasonable time.34 Both methodologies 

would reimburse the incumbent carrier 

for the cost of performing the switch, as 

determined by the carrier’s embedded 

and variable costs of service. Reciprocal 

switching fees that allow the incumbent 

carrier to recover its cost of service are 

consistent with longstanding practices 

concerning switching fees. See, e.g., 

Increased Switching Charges at Kan. 

City, Mo.-Kan., 344 I.C.C. 62 (1972). 

Because under this proposed part the 

Board would be prescribing reciprocal 

switching as a remedy for service 

failures, the Board finds it inappropriate 

to use a methodology that would allow 

the incumbent carrier to recover any lost 

profits for the line-haul portion of the 

movement being provided by the 

alternate carrier. Such a compensation 

methodology would be tantamount to 

rewarding the incumbent carrier for 

inadequate service. 

Cost of Service. One option is setting 

switching rates based on the cost-ofservice approach that has been used in 

past cases on switching rates. Id. This 

approach could either use the ICC 


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35The running of the two years is not tolled by 

disputes about compensation. 

36For example, if the prescribed reciprocal 

switching agreement would pertain to a substantial 

volume of traffic, and if the alternate carrier needed 

to make investments to accept that traffic, then a 

longer minimum term might be appropriate to give 

the alternate carrier more opportunity to recover 

and earn a return on that investment. Significant 

volumes of traffic might require investment in 

physical plant, additional employees, and 

additional locomotive maintenance capability. The 

ramp-up time for any of these processes is 

approximately six months, after which, given a twoyear term, the alternate carrier would have only 18 

months to earn a return. 

37Therefore, if the Board prescribed a four-year 

term, the window for petitioning to terminate the 

prescription would fall during the third year. 

38 If a carrier has no such similar traffic, it may 

submit a comparison group of the same broad traffic 

type in the same geographic region. 

39The Board would consider whether a failure to 

meet the performance standard for that 24-week 

period, or during the pendency of the petition, was 

due to conditions that were beyond the carrier’s 

control and had been demonstrably resolved. 

Terminal Form F, 9–64, Formula for Use 

in Determining Rail Terminal Freight 

Service Costs (Sept. 1964), or the 

Board’s Uniform Rail Costing System 

(URCS) to develop costs. 

SSW Compensation. Another option 

to set compensation for the non-linehaul portion of the movement is 

adapting the Board’s ‘‘SSW 

Compensation’’ methodology to 

reciprocal switching fees. See St. Louis 

SW Ry.—Trackage Rts. over Mo. Pac. 

R.R.—Kan. City to St. Louis, 1 I.C.C.2d 

776 (1984); St. Louis SW Ry.—Trackage 

Rts. over Mo. Pac. R.R.—Kan. City to St. 

Louis, 4 I.C.C.2d 668 (1987). Although 

SSW Compensation is used primarily in 

trackage rights cases where one rail 

carrier is actually operating over another 

rail carrier’s lines, many of the 

principles that inform the methodology 

would apply in the reciprocal switching 

fee context as well. Thus, what the 

Board calls Rental Income in SSW 

Compensation would have an analogy 

in a directed switch in the form of 

Imputed Rental Income. The application 

of such methodology should not include 

any lost profit from the line-haul 

beyond the switching location. 

(h) Term and Termination 

A prescription under part 1145 would 

ordinarily have a term of two years from 

the date on which reciprocal switching 

operations thereunder began; the 

incumbent rail carrier normally could 

seek a termination date that would fall 

no earlier than the two-year anniversary 

of the date on which reciprocal 

switching operations began.35 The 

Board could prescribe a minimum term 

longer than two years and up to four 

years if the petitioner demonstrated that 

the longer minimum term was necessary 

for the prescription to be practical given 

the petitioner’s or alternate carrier’s 

legitimate business needs.36 It is 

essential that the duration of a 

reciprocal switching order is sufficiently 

long to make alternative service feasible 

and reasonably attractive to potential 

alternate carriers. In all cases, the 

minimum term of the prescription 

would be stated in the Board’s order 

granting the prescription. The Board 

seeks comment on whether a minimum 

term longer than two years and/or 

whether a maximum term longer than 

four years is necessary, across all 

prescriptions under part 1145, to make 

the proposed rule practicable and 

effective. 

The incumbent rail carrier may file a 

petition to terminate no more than 180 

days and no less than 120 days before 

the end of the prescribed period.37 A 

reply to a petition to terminate shall be 

filed within 15 days of the petition, and 

a rebuttal may be filed within seven 

days after the reply. Subject to an 

appropriate protective order, the 

shipper/receiver has the right to access 

and examine the facts and data 

underlying a carrier’s petition to 

terminate. If the Board does not act 

within 90 days from the close of 

briefing, the prescription automatically 

terminates at the end of the original 

term of the prescription; provided that, 

if the Board is unable to act within that 

time period due to extraordinary 

circumstances, the prescription would 

be automatically renewed for an 

additional 30 days from the end of the 

current term. In such cases, the Board 

would issue an order alerting the parties 

to the extraordinary circumstances and 

the renewal. 

The Board would grant a petition to 

terminate if the incumbent rail carrier 

demonstrated that, at the time of the 

incumbent rail carrier’s petition, the 

incumbent rail carrier’s service for 

similar traffic on average met whichever 

performance standard served as the 

justification for the prescription. 

‘‘Similar traffic’’ is defined as the broad 

category type (e.g., manifest traffic) to or 

from the terminal area that is affected by 

the prescription.38 This requirement 

includes a demonstration by the 

incumbent carrier that it consistently 

has been able to meet, over the most 

recent 24-week period, the performance 

standards for similar traffic to or from 

the relevant terminal area.39 In addition 

to challenging a carrier’s submitted 

performance data, the shipper/receiver 

or alternate carrier—during the 

pendency of the petition to terminate— 

may show that the petitioning carrier’s 

service degraded below the relevant 

performance standard. 

For example, suppose the Board 

prescribes a reciprocal switching 

agreement because the incumbent 

railroad’s reliability standard for certain 

manifest traffic from Yard X stood at 

50%. During the period when 

termination petitions are permitted, the 

incumbent railroad files a petition to 

terminate in which it demonstrates that 

its average service reliability standard 

for manifest traffic from Yard X during 

the previous 24-week period is now 

90%. Absent a successful reply by the 

shipper/receiver or alternate carrier, 

such as a showing that the incumbent 

railroad’s service has deteriorated below 

the reliability standard during the 

pendency of the petition, the petition to 

terminate would be granted because the 

Board would have a basis to find that 

the shipper/receiver’s traffic would 

achieve an acceptable reliability 

standard for the petitioner’s traffic. 

In the event the incumbent carrier 

does not file a petition for termination 

no more than 180 days, and no less than 

120 days before the end of the 

prescription period, or files such a 

petition and fails to sustain its burden 

of proof, the reciprocal switching 

prescription would automatically renew 

for the same period as the initial 

prescription. The Board seeks comment 

on whether, alternatively, the renewal 

should be for only an additional one 

year. The Board also seeks comment on 

whether a subsequent failure by the 

incumbent railroad within a specified 

time period, such as one year, following 

the termination of a prescribed 

reciprocal switching arrangement 

should result in a permanent reciprocal 

switching order. 

The Board emphasizes that the 

prescription of a reciprocal switching 

agreement does not prevent an 

incumbent rail carrier from competing 

to keep its traffic and attempting to win 

back the traffic by voluntary agreement 

of the petitioner during the prescription 

period by demonstrating that it will 

soon provide better service or offering 

the petitioner more favorable terms and 

conditions to win its business. Indeed, 

in addition to preventing service 

problems in the first place, the proposed 

rule intends to spur carrier 

improvement if it falls below these 

standards. 

Part II: Data 

The new part 1145 would require 

Class I carriers to make data available to 

customers. Within seven days of a 

written request from a shipper or 

receiver, the incumbent rail carrier 

would be required to provide that 


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40The Board seeks comment whether it could 

require a carrier to disclose data about past service 

to a shipper or receiver when a different entity paid 

for the service. The Board likewise seeks comment 

whether it should give the entity that paid for the 

service the opportunity to seek confidential 

treatment of service data that a carrier provides to 

a shipper or receiver upon request. 41Furthermore, many rail users indicated at the 

April 2022 hearing in Docket No. EP 770 that 

increased visibility into FMLM service and TPC 

data would be particularly useful. Urgent Issues in 

Freight Rail Serv.—R.R. Reporting, EP 770 (Sub-No. 

1), slip op. at 3 (STB served May 6, 2022). 

42The Class I railroads would no longer need to 

report this data for intermodal traffic. 

43For the purpose of RFA analysis for rail carriers 

subject to the Board’s jurisdiction, the Board 

defines a ‘‘small business’’ as only including those 

rail carriers classified as Class III rail carriers under 

49 CFR 1201.1–1. See Small Entity Size Standards 

Under the 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 Annual Operating Revenues of R.Rs., 

EP 748 (STB served June 29, 2023). 

customer all relevant individualized 

performance records necessary to bring 

a case at the Board.40

Specifically, the railroad would be 

required to record and—upon request by 

the shipper or receiver—provide to that 

customer all of the customer’s data on 

traffic that was assigned OETAs and 

local service windows, along with the 

corresponding time stamps indicating 

performance. As in Demurrage Billing 

Requirements, EP 759, slip op. at 3, the 

railroad must provide the petitioner 

with machine readable data, meaning 

‘‘data in an open format that can be 

easily processed by computer without 

human intervention while ensuring no 

semantic meaning is lost.’’ Id. at 3 n.9. 

Stakeholders are invited to comment on 

what format and fields would be useful. 

Additionally, to assist the Board with 

general oversight and to facilitate 

implementation of part 1145, the Board 

proposes to make permanent the 

collection of certain data that is relevant 

to service reliability and inadequate 

local service and that is currently being 

collected on a temporary basis in Docket 

No. EP 770 (Sub-No. 1). See Urgent 

Issues in Freight Rail Serv.—R.R. 

Reporting, EP 770 (Sub-No. 1), slip op. 

at 6 (STB served May 6, 2022) (items 5 

and 7). The Board has found that this 

data is particularly helpful to 

understanding conditions on the rail 

network.41 The Board’s permanent 

collection of this data under part 1145 

would be adapted to the design of part 

1145 as follows. The Class I carriers 

would be required to provide to the 

Board on a weekly basis: (1) for 

shipments moving in manifest service, 

the percentage of shipments for that 

week that were delivered to the 

destination within 24 hours of OETA, 

out of all shipments in manifest service 

on the carrier’s system during that 

week; 42 and (2) for each of the carrier’s 

operating divisions and for the carrier’s 

overall system, the percentage of 

planned service windows during which 

the carrier successfully performed the 

requested local service, out of the total 

number of planned service windows on 

the relevant division or system for that 

week. Carriers would be required to 

collect and report this data using the 

terms that are defined in part 1145 and 

the associated provisions of 1145 on 

what constitutes a miss. As one 

example, a railroad would need to count 

as a miss a shipment that was not 

delivered within 24 hours of OETA as 

defined in part 1145. As a second 

example, a railroad would need to count 

as a miss a failure to provide local 

service on the planned-service window 

as defined in part 1145. 

The Board finds that the collection of 

this data would not be unduly 

burdensome, as carriers are already 

providing similar data to the Board and 

use such data in the ordinary course of 

business. The comments in Docket No. 

EP 767 indicate that some railroads 

already provide dashboards showing 

shipment-specific data. For example, 

NSR asserts that ‘‘AccessNS and the 

Trax mobile application offer Norfolk 

Southern’s customers real-time, easy 

access to first-mile/last-mile data 

regarding each of their shipments on the 

Norfolk Southern system.’’ NSR 

Opening Comments 2, Dec. 17, 2021, 

First Mile/Last Mile Serv., EP 767. 

If this data reporting requirement 

were to become permanent, there would 

no longer be a need to collect that 

particular data on a temporary basis in 

Docket No. EP 770 (Sub-No. 1). The 

Board will defer any decisions on 

whether to extend the Docket No. EP 

770 (Sub-No. 1) collection as to other 

data until the conclusion of this 

proceeding. Should the Board 

ultimately conclude that the data 

reporting that it proposes to make 

permanent here is sufficient for 

regulatory purposes, the Board expects 

that it would close Docket No. EP 770 

(Sub-No. 1) following the expiration of 

the current temporary collection. 

Similarly, because the new part 1145 

would address many first-mile/last-mile 

issues, the Board will defer any further 

action in Docket No. EP 767 until the 

conclusion of this proceeding. In Docket 

No. EP 767, the Board sought comments 

exploring whether additional metrics to 

measure first-mile/last-mile service 

would be useful and what the associated 

burdens would be. The Board expects 

that comments in this proceeding 

regarding the proposed part 1145 will 

address similar issues, but with respect 

to the particular metrics proposed here. 

Environmental Review 

The proposal of part 1145 is 

categorically excluded from 

environmental review under 49 CFR 

1105.6(c). 

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 notice of 

proposed rulemaking, the agency must 

either include an initial regulatory 

flexibility analysis, section 603(a), or 

certify that the proposed rule would not 

have a ‘‘significant impact on a 

substantial number of small entities,’’ 

section 605(b). The impact must be a 

direct impact on small entities ‘‘whose 

conduct is circumscribed or mandated’’ 

by the proposed rule. White Eagle Coop. 

Ass’n v. Conner, 553 F.3d 467, 480 (7th 

Cir. 2009). 

The regulations proposed here are 

directed at Class I railroads and their 

affiliated companies. As such, the 

regulations would not impact a 

substantial number of small entities.43

Accordingly, pursuant to 5 U.S.C. 

605(b), the Board certifies that the 

regulations proposed herein would not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the RFA. A copy 

of this decision will be served upon the 

Chief Counsel for Advocacy, Office of 

Advocacy, U.S. Small Business 

Administration. 

Paperwork Reduction Act 

Pursuant to the Paperwork Reduction 

Act, 44 U.S.C. 3501–3521, Office of 

Management and Budget (OMB) 

regulations at 5 CFR 1320.8(d)(3), and 

Appendix B, the Board seeks comments 

about the impact of the proposed rules 

regarding: (1) whether the collection of 

information, as set forth in the proposed 

rule and further described in Appendix 

B, is necessary for the proper 

performance of the functions of the 


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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 reporting of the data under 49 

CFR part 1145 would be standardized. 

The reporting requirement would 

require an initial hourly burden for the 

initial programing as well as the weekly 

report output and submission (section 

1145.8(b)). The petition seeking 

prescription of a reciprocal switching 

agreement (section 1145.5) and the 

petition seeking termination (section 

1145.7) would be necessary to 

implement part 1145. Section 1145.8(a) 

will provide for Class I rail carriers to 

provide individualized service data to 

terminal-area shippers or receivers upon 

request. 

The Board anticipates that the 

requirement for the Class I carriers to 

make updates to their internal data 

collections methodology to standardize 

and harmonize it with the Board’s 

requirements for the proposed reporting 

would add an estimated cumulative 

total one-time hour burden of 480 hours 

across all six Class I railroads. The 

weekly reports are estimated to require 

an annual hour burden of approximately 

2,564 hours, and the petitions to initiate 

and terminate the process are estimated 

to require approximately 800 hours. 

Requests for individualized service data 

by terminal-area shippers or receivers 

are estimated to require approximately 

36 hours. 

The Board welcomes comment on the 

estimates of actual time of its proposed 

collections requirements for Class I 

carriers and petitioners seeking 

reciprocal switching agreements, as 

detailed below in Appendix B. The 

proposed rules will be submitted to 

OMB for review as required under 44 

U.S.C. 3507(d) and 5 CFR 1320.11. 

Comments received by the Board 

regarding the information collection 

will also be forwarded to OMB for its 

review when the final rule is published. 

It is ordered. 

1. The Board proposes to amend its 

regulations as set forth in this decision. 

Notice of the proposed rule will be 

published in the Federal Register. 

2. Comments are due by October 23, 

2023. Reply comments are due by 

November 21, 2023. 

3. A copy of this decision will be 

served upon the Chief Counsel for 

Advocacy, Office of Advocacy, U.S. 

Small Business Administration. 

4. Docket No. EP 711 (Sub-No. 1) is 

discontinued. 

5. This decision is effective on its date 

of service. 

Decided: September 5, 2023. 

By the Board, Board Members Fuchs, 

Hedlund, Oberman, Primus, and 

Schultz. Board Member Primus 

concurred with a separate expression. 

lllllllllllllllllll

Board Member Primus, concurring: 

Today’s NPRM sets forth a promising 

new way to institute reciprocal 

switching when it is ‘‘practicable and in 

the public interest.’’ 49 U.S.C. 11102(c). 

This proposal appears to be an 

improvement over the 2016 NPRM’s 

application of the public interest prong, 

and I look forward to the development 

of a comment record on it. 

I also eagerly anticipate the Board’s 

action to improve access to the statute’s 

other prong, addressing reciprocal 

switching that is ‘‘necessary to provide 

competitive rail service.’’ Id. Rail 

customers have interpreted the standard 

in 49 CFR 1144.2—under which a 

reciprocal switching order requires a 

determination that it is ‘‘necessary to 

remedy or prevent an act that is contrary 

to the competition policies of 49 U.S.C. 

10101 or is otherwise 

anticompetitive’’—as setting an 

unrealistically high bar. See 2016 

NPRM, EP 711 (Sub-No. 1) et al., slip op. 

at 8. As a result, no petitions for 

reciprocal switching have been filed for 

many years, despite rail customers’ 

expressions of concern about 

competition. Id. The Board should act 

soon to ensure that reciprocal switching 

is available for competitive access to the 

extent authorized by the language of the 

statute. 

List of Subjects in 49 CFR 1145 

Common carrier, Freight, Railroads, 

Rates and fares, Reporting and 

recordkeeping requirements, and 

Shipping. 

Jeffrey Herzig, 

Clearance Clerk. 

■ For the reasons set forth in the 

preamble, the Surface Transportation 

Board proposes to amend title 49, 

chapter X, of the Code of Federal 

Regulations by adding part 1145 to read 

as follows: 

PART 1145—RECIPROCAL 

SWITCHING FOR INADEQUATE 

SERVICE 

Sec. 

1145.1 Definitions 

1145.2 Performance standards 

1145.3 Affirmative defenses 

1145.4 Negotiations 

1145.5 Procedures 

1145.6 Prescription 

1145.7 Termination 

1145.8 Data 

Authority: 49 U.S.C. 1321 and 11102. 

§ 1145.1 Definitions. 

The following definitions apply to 

part 1145: 

Affiliated companies has the same 

meaning as ‘‘affiliated companies’’ in 

Definition 5 of the Uniform System of 

Accounts (49 CFR part 1201, subpart A). 

Cut-off time means the deadline for 

requesting service during a service 

window, as determined in accordance 

with the rail carrier’s established 

protocol. 

Delivery means when a shipment is 

actually placed at a designated 

destination or is constructively placed 

at a local yard that is convenient to the 

designated destination. In the case of 

shipments at interchange locations, a 

shipment is deemed to be delivered 

when the receiving carrier 

acknowledges receipt of a shipment. For 

purposes hereof, constructive placement 

of a shipment at a local yard constitutes 

delivery only when: 

(1) The recipient has the option, by 

prior agreement between the rail carrier 

and the customer, to have the rail carrier 

hold the shipment pending the 

recipient’s request for delivery to the 

designated destination and the recipient 

has not yet requested delivery; or 

(2) The recipient is unable to accept 

delivery at the designated destination. 

Designated destination means the 

final destination as specified in the bill 

of lading or, in the case of a joint-line 

movement, the interchange where the 

shipment is transferred to the interline 

carrier, its agent, or affiliated company. 

Incumbent rail carrier means a Class 

I rail carrier that currently provides linehaul service to the petitioner to or from 

the point of origin or final destination 

that would be covered by the proposed 

reciprocal switching agreement. 

Lane means a shipment’s point of 

origin and designated destination. 

Shipments of the same commodity that 

have the same point of origin and the 

same designated destination are deemed 

to travel over the same lane, regardless 

of which route(s) the rail carrier uses to 

move the shipments from origin to 

destination. In the case of an interline 

movement, the designated destination is 

the designated interchange. 

Manifest traffic means shipments that 

move in carload or non-unit train 

service. 

Original estimated time of arrival or 

OETA means the estimated time of 

arrival that the incumbent rail carrier 


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provides when the shipper tenders the 

bill of lading or when the incumbent 

rail carrier receives the shipment from 

an interline carrier. 

Petitioner means a shipper or a 

receiver that files a petition hereunder 

for prescription of a reciprocal 

switching agreement. 

Planned service window means a 

service window for which the shipper 

or receiver requested local service, 

provided that the shipper or receiver 

made its request by the cut-off time for 

that window. 

Practical physical access means a 

feasible line-haul option on a rail 

carrier, including but not limited to: 

direct physical access to that carrier or 

its affiliated company; an existing 

switching arrangement between an 

incumbent rail carrier and another rail 

carrier; terminal trackage rights; or 

contractual arrangement between a local 

rail carrier and a line-haul carrier. 

Receipt of a shipment means when 

the preceding rail carrier provides a 

time stamp or rail tracking message that 

the shipment has been delivered to the 

interchange. 

Reciprocal switching agreement 

means an agreement for the transfer of 

rail shipments between one Class I rail 

carrier or its affiliated company and 

another Class I rail carrier or its 

affiliated company within the terminal 

area in which the rail shipment begins 

or ends its rail journey. Service under a 

reciprocal switching agreement may 

involve one or more intermediate 

transfers to and from yards within the 

terminal area. 

Alternative 1–A 

Service window means a window 

during which the incumbent rail carrier 

offers to perform local service 

(placements and/or pick-ups of rail 

shipments) at a shipper’s or receiver’s 

facility. A service window must be 

made available by a rail carrier with 

reasonable advance notice to the 

shipper or receiver and in accordance 

with the carrier’s established protocol. 

For purposes of this part, a service 

window is 12 hours in duration, 

beginning at the start of the work shift 

for the crew that will perform the local 

service, without regard to whether the 

incumbent rail carrier specified a longer 

or shorter service window. 

Alternative 1–B 

Service window means a window 

during which the incumbent rail carrier 

offers to perform local service 

(placements and/or pick-ups of rail 

shipments) at a shipper’s or receiver’s 

facility. A service window must be 

made available by a rail carrier with 

reasonable advance notice to the 

shipper or receiver and in accordance 

with the carrier’s established protocol. 

For purposes of this part, a service 

window is the time specified according 

to the carrier’s established protocol, not 

to exceed 12 hours, in duration, 

beginning at the start of the work shift 

for the crew that will perform the local 

service, without regard to whether the 

incumbent rail carrier specified a longer 

or shorter service window. 

Shipment means a loaded railcar that 

is designated in a bill of lading. 

Similar traffic means traffic that is of 

the same broad type (manifest traffic or 

unit train) as the traffic that is governed 

by a prescribed reciprocal switching 

agreement, and is transported by the 

incumbent rail carrier or its affiliated 

company to or from the terminal area in 

which transfers occur under the 

prescribed reciprocal switching 

agreement. 

Terminal area means a commercially 

cohesive area in which two or more 

railroads engage in the local collection, 

classification, and distribution of rail 

shipments for purposes of line-haul 

service. A terminal area is characterized 

by multiple points of loading/unloading 

and yards for such local collection, 

classification, and distribution. A 

terminal area (as opposed to main-line 

track) must contain and cannot extend 

significantly beyond recognized 

terminal facilities, such as freight or 

classification yards. A point of origin or 

final destination on the rail system is 

not suitable for a prescribed switching 

arrangement if the point is not 

integrated into or, using existing 

facilities, reasonably cannot be 

integrated into the incumbent rail 

carrier’s terminal-area operation. 

Time of arrival means the time that a 

shipment is delivered to the designated 

destination. 

Transit time means the time between 

a rail carrier’s receipt of a shipment, 

upon either the tender of the bill of 

lading to that rail carrier or the rail 

carrier’s receipt of the shipment from an 

interline carrier and the rail carrier’s 

delivery of that shipment to the agreedupon destination. Transit time does not 

include time spent loading and 

unloading cars. 

§ 1145.2 Performance standards. 

The performance standards in this 

section apply only to petitions for 

prescription of a reciprocal switching 

agreement under this part. 

(a) Service reliability (original 

estimated time of arrival). The service 

reliability standard applies to shipments 

that travel as manifest traffic. The 

service reliability standard measures a 

rail carrier’s success in delivering a 

shipment from its original or 

interchange location to the designated 

destination by the original estimated 

time of arrival, accounting for the 

applicable grace period. Determination 

of a rail carrier’s compliance with the 

service reliability standard is based on 

all shipments from the same original or 

interchange location to the same 

designated destination over a period of 

12 consecutive weeks. A rail carrier 

meets the service reliability standard 

when A/B ratio is greater than 60%, 

where A is the number of shipments 

that are delivered within 24 hours of the 

original estimated time of arrival, and B 

is the total number of shipments. This 

ratio will increase to 70% after [DATE 

ONE YEAR AFTER EFFECTIVE DATE 

OF FINAL RULE]. 

Alternative 2–A 

(b) Service consistency (transit time). 

The service consistency standard 

applies to shipments in the form of a 

unit train and to shipments that travel 

as manifest traffic. The service 

consistency standard measures a rail 

carrier’s success over time in 

maintaining the transit time for a 

shipment. A rail carrier meets the 

service consistency standard when A is 

no more than 20% longer than B, where 

A is the average transit time for all 

shipments from the same location to the 

same designated destination over a 

period of 12 consecutive weeks, and B 

is the average transit time for all 

shipments from the same location to the 

same designated destination over the 

same 12-week period during the 

previous year. 

Alternative 2–B 

(b) Service consistency (transit time). 

The service consistency standard 

applies to shipments in the form of a 

unit train and to shipments that travel 

as manifest traffic. The service 

consistency standard measures a rail 

carrier’s success over time in 

maintaining the transit time for a 

shipment. A rail carrier meets the 

service consistency standard when A is 

no more than 25% longer than B, where 

A is the average transit time for all 

shipments from the same location to the 

same designated destination over a 

period of 12 consecutive weeks, and B 

is the average transit time for all 

shipments from the same location to the 

same designated destination over the 

same 12-week period during the 

previous year. 

(c) Lanes. (1) Except as provided in 

paragraph (c)(2) of this section, 

compliance with the performance 

standards in paragraphs (a) and (b) of 


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this section is determined separately for 

each lane of traffic to or from the 

petitioner’s facility. Shipments of the 

same commodity from the same point of 

origin to the same designated 

destination are deemed to travel over 

the same lane, without regard to the 

route between the point of origin and 

designated destination. In the case of an 

interline movement, the designated 

destination is the designated 

interchange. 

(2) The Board shall prescribe a 

reciprocal switching agreement that 

governs shipments to or from multiple 

lanes to or from the petitioner’s facility 

if all the conditions in this paragraph 

(c)(2) are met. 

(i) Each of the included lanes had 

practical physical access to only one 

Class I carrier that could serve that lane. 

(ii) The incumbent rail carrier’s 

average success rate for those lanes fails 

to meet a performance standard. 

(iii) The Board determines that the 

prescribed agreement would be practical 

and efficient only when the agreement 

governed shipments to or from all of 

those lanes. 

(iv) The petition meets other 

conditions to a prescription under this 

part. 

(3) For purposes of paragraph (c)(2) of 

this section, the petitioner may choose 

which lanes of traffic to or from its 

facility to include in demonstrating the 

incumbent rail carrier’s average success 

rate, including lanes of different 

commodities and/or lanes with different 

points of origin or designated 

destination. 

Alternative 3–A 

(d) Empty railcars. 

(1) For private or shipper-leased 

railcars, a rail carrier fails to meet the 

service consistency standard in 

paragraph (b) of this section if the rail 

carrier’s average transit time for 

delivering empty cars to a designated 

destination over a 12-week period 

increases by more than 20% compared 

to average transit time for delivering 

empty cars to the same designated 

destination during the same 12-week 

period during the previous year. 

Alternative 3–B 

(1) For private or shipper-leased 

railcars, a rail carrier fails to meet the 

service consistency standard in 

paragraph (b) of this section if the rail 

carrier’s average transit time for 

delivering empty cars to a designated 

destination over a 12-week period 

increases by more than 25% compared 

to average transit time for delivering 

empty cars to the same designated 

destination during the same 12-week 

period during the previous year. 

(2) A rail carrier’s failure to meet a 

performance standard as provided in 

this paragraph (d) provides the basis for 

prescribing a reciprocal switching 

agreement that governs both the 

delivery of the empty cars and the 

delivery of the associated shipments of 

loaded cars. 

(e) Industry spot and pull. The 

industry spot and pull standard 

measures a rail carrier’s success in 

performing local placements (‘‘spots’’) 

and pick-ups (‘‘pulls’’) of loaded railcars 

and unloaded private or shipper-leased 

railcars at a shipper’s or receiver’s 

facility during the planned service 

window. 

(1) A rail carrier meets the industry 

spot and pull standard if, over a period 

of 12 consecutive weeks, the carrier has 

a success rate of 80% or more in 

performing requested spots and pulls 

within the planned service window, as 

determined based on the total number of 

planned service windows during that 

12-week period. If a rail carrier cancels 

a service window other than at the 

shipper’s or receiver’s request, that 

window is included as a failure in 

calculating compliance with the 

industry spot and pull standard. Failure 

to spot constructively placed cars that 

have been ordered in by the cut-off time 

for a planned service window results in 

a missed service window. 

(2) If a rail carrier reduces the 

frequency of its local service to a 

shipper’s or receiver’s facility, and if 

that reduction is not based on a 

commensurate reduction in customer 

demand, then the industry spot and pull 

standard increases to a success rate of 

90% for one year. 

§ 1145.3 Affirmative defenses. 

An incumbent rail carrier shall be 

deemed not to fail a performance 

standard in § 1145.2 if any of the 

conditions described in this section is 

met. The Board will also consider, on a 

case-by-case basis, affirmative defenses 

that are not specified in this section. 

(a) The rail carrier experiences 

extraordinary circumstances beyond the 

carrier’s control, including but not 

limited to unforeseen track outages 

stemming from natural disasters, severe 

weather events, flooding, accidents, 

derailments, and washouts. A carrier’s 

intentional reduction or maintenance of 

its workforce at a level that itself causes 

workforce shortage, or, in the event of 

a workforce shortage, failure to use 

reasonable efforts to increase its 

workforce, would not, on its own, be 

considered a defense for failure to meet 

any performance standard. A carrier’s 

intentional reduction or maintenance of 

its power or car supply, or failure to use 

reasonable efforts to maintain its power 

or car supply, that itself causes a failure 

of any performance standard would not, 

on its own, be considered a defense. 

(b) The petitioner’s traffic increases by 

20% or more during the 12-week period 

in question, as compared to the 

preceding 12 weeks (for non-seasonal 

traffic) or the same 12 weeks during the 

previous year (for seasonal traffic such 

as agricultural shipments), where the 

petitioner failed to notify the incumbent 

rail carrier at least 12 weeks prior to the 

increase. 

(c) There are highly unusual 

shipments by the shipper during any 

week of the 12-week period in question. 

For example, a pattern might be 

considered highly unusual if a shipper 

projected traffic of 120 cars in a month 

and 30 cars per week, but the shipper 

had a plant outage for three weeks and 

then requested shipment of 120 cars in 

a single week. 

(d) The incumbent rail carrier’s failure 

to meet the performance standard is due 

to the dispatching choices of a third 

party. 

§ 1145.4 Negotiations. 

At least five days prior to petitioning 

for prescription of a reciprocal 

switching agreement hereunder, the 

petitioner must seek to engage in good 

faith negotiations to resolve its dispute 

with the incumbent rail carrier. 

§ 1145.5 Procedures. 

(a) If a petitioner believes that a rail 

carrier providing it service failed to 

meet a performance standard described 

in section 1145.2, it may file a petition 

for prescription of a reciprocal 

switching agreement. 

(b) The petition must include the 

information and documents described 

in this paragraph (b). 

(1) Confirmation that the petitioner 

attempted good faith negotiations as 

required by § 1145.4, identify the 

performance standard the railroad failed 

to meet over the requisite period of 

time, and provide evidence supporting 

its claim. 

(2) Switching publications of the 

incumbent rail carrier and the potential 

alternate carrier. 

(3) A motion for a protective order 

that would govern the disclosure of data 

that the rail carrier provided to the 

petitioner under this part. 

(c) The petition must have been 

served on the incumbent rail carrier, the 

alternate rail carrier, and the Federal 

Railroad Administration. 

(d) A reply to a petition is due within 

20 days of a completed petition. 


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(e) A rebuttal may be filed within 20 

days after a reply to a petition. 

(f) The Board will endeavor to issue 

a decision on a petition within 90 days 

from the date of the completed petition. 

§ 1145.6 Prescription. 

(a) The Board will prescribe a 

reciprocal switching agreement under 

this part if all the conditions in this 

paragraph (a) are met. 

(1) For the lane of traffic that is the 

subject of the petition, the petitioner has 

practical physical access to only one 

Class I carrier that could serve that lane. 

(2) The petitioner demonstrates that 

the incumbent rail carrier failed to meet 

one or more of the performance 

standards in § 1145.2 with regards to its 

shipment. 

(3) The incumbent rail carrier fails to 

demonstrate an affirmative defense as 

provided in § 1145.3. 

(b) Notwithstanding paragraph (a) of 

this section, the Board will not prescribe 

a reciprocal switching agreement if the 

incumbent rail carrier or alternate rail 

carrier demonstrates that: switching 

service under the agreement, i.e., the 

process of transferring the shipment 

between carriers within the terminal 

area, could not be provided without 

unduly impairing either rail carrier’s 

operations; or the alternate rail carrier’s 

provision of line-haul service to the 

petitioner would be infeasible or would 

unduly hamper the incumbent rail 

carrier or the alternate rail carrier’s 

ability to serve its existing customers. If 

the incumbent rail carrier and alternate 

rail carrier have an existing reciprocal 

switching arrangement in a terminal 

area in which the petitioner’s traffic is 

currently served, the proposed 

operation is presumed to be 

operationally feasible, and the 

incumbent rail carrier will bear a heavy 

burden of establishing why the 

proposed operation should not qualify 

for a reciprocal switching agreement. 

(c) In prescribing a reciprocal 

switching agreement, the Board shall 

prescribe a term of service of two years, 

provided that the Board may prescribe 

a longer term of service of up to four 

years if the petitioner demonstrates that 

the longer minimum term is necessary 

for the prescription to be practical given 

the petitioner’s or alternate carrier’s 

legitimate business needs. 

(d) Upon the Board’s prescription of 

a reciprocal switching agreement under 

this part, the affected rail carriers must: 

set the terms of the agreement and offer 

service thereunder within 30 days of 

service of the prescription; include, in 

the appropriate disclosure under 49 CFR 

part 1300, the location of the 

petitioner’s facility, indicating that the 

location is open to reciprocal switching, 

and the applicable terms and price; and 

notify the Board within 10 days of when 

the carriers offered service that the 

agreement has taken effect. 

(e) If the affected carriers cannot agree 

on compensation within 30 days of the 

service of the prescription, then the 

affected rail carriers must offer service 

and petition the Board to set 

compensation. 

§ 1145.7 Termination. 

(a) A prescription hereunder 

automatically renews at the end of the 

term established under § 1145.6(c), 

unless the Board grants a petition by the 

incumbent rail carrier to terminate the 

prescription. Automatic renewal is for 

the same term as the original term of the 

prescription. 

(b) The Board will grant a petition to 

terminate a prescription if the 

incumbent rail carrier demonstrates 

that, for a consecutive 24-week period 

prior to the filing of the petition to 

terminate, the incumbent rail carrier’s 

service for similar traffic on average met 

the performance standard that provided 

the basis for the prescription. This 

requirement includes a demonstration 

by the incumbent carrier that it 

consistently has been able to meet, over 

the most recent 24-week period, the 

performance standards for similar traffic 

to or from the relevant terminal area. 

(c) The incumbent rail carrier may 

submit a petition to terminate a 

prescription not more than 180 days and 

not less than 120 days before the end of 

the current term of the prescription. In 

the event the incumbent carrier does not 

file a petition for termination no more 

than 180 days, but no less than 120 

days, before the end of the prescription 

period or files such a petition and fails 

to sustain its burden of proof, the 

reciprocal switching prescription would 

automatically renew for the same period 

as the initial prescription. 

(d) A reply to a petition to terminate 

is due within 15 days of the petition. 

(e) A rebuttal may be filed within 

seven days of the filing of the reply. 

(f) The Board will endeavor to issue 

a decision on a petition to terminate 

within 90 days from the close of 

briefing. If the Board does not act within 

90 days, the prescription automatically 

terminates at the end of the original 

term of the prescription; provided that, 

if the Board does not issue a decision 

due to extraordinary circumstances, as 

determined by the Board, the 

prescription is automatically renewed 

for 30 days from the end of the current 

term. When there are extraordinary 

circumstances, the Board will issue an 

order alerting the parties that it will not 

issue a decision within 90 days. 

§ 1145.8 Data. 

(a) Within seven days of a written 

request from a shipper or receiver, the 

incumbent rail carrier shall provide that 

customer all relevant individualized 

performance records necessary to file a 

petition under § 1145.5 with the Board. 

(b) All Class I carriers shall report to 

the Board on a weekly basis, in a 

manner and form determined by the 

Board, data that shows: the percentage 

of shipments on the carrier’s system that 

moved in manifest service and that were 

delivered within 24 hours of OETA, out 

of all shipments on the carrier’s system 

that moved in manifest service during 

that week; and, for each of the carrier’s 

operating divisions and for the carrier’s 

overall system, the percentage of 

planned service windows during which 

the carrier successfully performed the 

requested local service, out of the total 

number of planned service windows on 

the relevant division or system for that 

week, all within the meaning of this 

part. 

Note: The following appendices A and B 

will not appear in the Code of Federal 

Regulations. 

Appendix A 

Tables and Illustrations 

1. Overview of Part 1145 

Performance standard Focus Measure of success Effect of prescription 

Service Reliability (OETA) § 1145.2(a) ........ Success in delivering shipments near the 

OETA.

[60] [70]% success in delivering shipments 

within 24 hours after OETA, measured 

over a 12-week period.

Access to alternate line haul 

carrier. 

Service Consistency (Transit Time) 

§ 1145.2(b).

Success in maintaining the average velocity of shipments over a lane from one 

year to the next.

Maintains velocity over a lane without a 

deterioration of more than [20] [25]%, as 

measured over a 12-week period.

Access to alternate line haul 

carrier. 

Industry Spot and Pull (ISP) § 1145.2(e) ..... Success in performing local service during 

the planned service window.

80% success in performing local service 

during the planned service window, 

measured over a 12-week period.

Access to alternate line haul 

carrier. 


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2. Service Reliability (Original Estimated 

Time of Arrival)—§ 1145.2(a) 

Option 1 

A rail carrier fails to meet the service 

reliability standard when A/B is less than 

60%, where: 

A = the number of shipments over a lane 

during a 12-week period that are delivered 

within 24 hours after the OETA and 

B = the total number of shipments over the 

same lane during the same 12-week period. 

Option 2 

The same as Option 1, except that A/B is 

less than 60% during the first year after 

enactment of part 1145 and less than 70% 

after the end of the first year. 

Illustration 

Over a 12-week period, a carrier moves a 

total of 23 shipments (each a loaded car) over 

a given lane. The cars are shipped and 

delivered in four groups as shown below, 

with each group delivered on a different day 

during the summer. Here, A (successful 

shipments) equals 12 and B (total shipments) 

equals 23, resulting in a service reliability 

ratio (A/B) of 52%. The carrier fails to meet 

the service reliability standard. 

OETA Delivery 

Difference 

from OETA 

(hours) 

Successful 

shipments 

Total 

shipments 

8/25/23, 20:24 ................................................. 8/27/23, 8:24 .................................................. +36 0 5 

7/25/23, 18:19 ................................................. 7/27/23, 21:55 ................................................ +51.6 0 6 

6/25/23, 12:19 ................................................. 6/26/23, 6:19 .................................................. +18 2 2 

7/26/23, 7:01 ................................................... 7/25/23, 6:01 .................................................. ¥25 10 10 

A = 12 B = 23 

3. Service Consistency (Transit Time)— 

§ 1145.2(b) 

A rail carrier fails to meet the service 

consistency standard when an increase from 

B to A is more than [20] [25]%, where: 

A = the average transit time for all 

shipments over a lane during a 12-week 

period and 

B = the average transit time for all 

shipments over the same lane during the 

same 12-week period during the prior 

calendar year. 

Illustration 1 

The average transit time during the period 

complained of is 13 days. The average transit 

time for the historical reference period is 11 

days. Here, A equals 13 and B equals 11. The 

increase from B to A is two days, which is 

18% of B. The carrier meets the service 

consistency standard. 

Illustration 2 

The average transit time during the period 

complained is 13 days. The average transit 

time for the historical reference period is 10 

days. Here, A equals 13 and B equals 10. The 

increase from B to A is three days, which is 

30% of B. The carrier fails to meet the service 

consistency standard. 

4. Industry Spot and Pull (ISP)—§ 1145.2(e) 

A rail carrier fails to meet the industry spot 

and pull standard when A/B is less than 

80%, where: 

A = the number of planned service 

windows over a 12-week period during 

which the carrier performed the requested 

local service and 

B = the total number of planned service 

windows over the same 12-week period. 

For this purpose, a ‘‘planned service 

window’’ is a day for which the customer 

requested local service by the applicable cutoff time. A planned service window is 12 

hours from the start of the work shift of the 

crew that is to perform the local service. 

Illustration 

The customer submits a timely request for 

local service on 14 occasions over a twelveweek period. On four of those occasions, the 

carrier fails to perform all of the requested 

local service during the planned service 

window, that is, within 12 hours of the start 

of the relevant crew’s work shift. Here, A 

equals 10 and B equals 14, resulting in an ISP 

ratio (A/B) of 71%. The carrier fails to meet 

the ISP standard. 

Appendix B 

Information Collection Under the Paperwork 

Reduction Act 

Title: Reciprocal Switching Agreements. 

OMB Control Number: 2140–00XX. 

STB Form Number: None. 

Type of Review: New Information 

Collection. 

Summary: As part of its continuing effort 

to reduce paperwork burdens, and as 

required by the Paperwork Reduction Act of 

1995, 44 U.S.C. 3501–3521 (PRA), the 

Surface Transportation Board (Board) gives 

notice that it is requesting from the Office of 

Management and Budget (OMB) approval (1) 

to collect certain service data from Class I rail 

carriers, (2) to provide for Class I rail carriers 

to provide individualized service data to 

terminal-area shippers or receivers upon 

request, (3) to provide for those shippers and 

receivers to file petitions for the prescription 

of a reciprocal switching agreement in a case 

of inadequate rail service, and (4) to provide 

for the affected rail carrier to petition to 

terminate a prescription. 

Respondents: Class I railroads and 

terminal-area shippers and receivers. 

Number of Respondents: Six Class I 

railroads for weekly reporting and one 

shipper, receiver, or carrier for each 

individualized request or petition. 

Estimated Time per Response: The 

estimated time is set forth in the table below. 

Frequency: Weekly and on occasion. 

Total Burden Hours (annually including all 

respondents): The total hour burdens are set 

forth in the table below. 

TABLE—TOTAL ESTIMATED BURDEN HOURS FOR RESPONDENTS

Type of filing 

Estimated 

hours per 

response 

Number of 

respondents 

Estimated 

frequency 

Total 

burden hours 

One-time update to data collection software to standardize with the Board’s data 

definition for service reliability and industry spot and pull ................................... 80 6 1 480 

Weekly reporting on service reliability and industry spot and pull (new 49 CFR 

1145.8(b)) ............................................................................................................. 4 6 52 1,248 

Occasional request and response to request for individualized service data (new 

49 CFR 1145.8(a)) ............................................................................................... 3 12 1 36 

Petition for Prescription of a Reciprocal Switching Agreement (new 49 CFR 

1145.5) ................................................................................................................. 140 5 1 700 

Petition to Terminate Prescription of a Reciprocal Switching Agreement (new 49 

CFR 1145.7) ......................................................................................................... 50 2 1 100 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 63917 

TABLE—TOTAL ESTIMATED BURDEN HOURS FOR RESPONDENTS—Continued 

Type of filing 

Estimated 

hours per 

response 

Number of 

respondents 

Estimated 

frequency 

Total 

burden hours 

Total Burden Hours .......................................................................................... .................... ........................ .................... 2,564 

Total ‘‘Non-Hour Burden’’ Cost: There are 

no non-hourly burdens, as the reports will be 

submitted electronically. 

Needs and Uses: A reciprocal switching 

agreement provides for the transfer of a rail 

shipment between Class I rail carriers or their 

affiliated companies within the terminal area 

in which the shipment begins or ends its 

journey on the rail system. An agreement 

facilitates line-haul service by a rail carrier 

that serves the terminal area, other than the 

rail carrier on whose tracks the shipment 

begins or ends its journey. Several years ago, 

the Board began to consider new regulations 

to require rail carriers to enter into reciprocal 

switching agreements. Those proposed 

regulations were never promulgated. Due to 

subsequent developments in the rail sector, 

including the emergence of service problems 

as a critical and ongoing issue, the Board is 

now considering a new set of regulations to 

prescribe reciprocal switching agreements in 

cases of inadequate rail service. 

The newly proposed regulations would 

allow for terminal-area shippers or receivers 

to seek the prescription of a reciprocal 

switching agreement when service to them 

fails to meet certain objective performance 

standards. The standards reflect what the 

Board believes to be the minimal level of rail 

service that is compatible with the public 

need, considering shippers and receivers’ 

need for reliable, predictable, and efficient 

rail service as well as rail carriers’ need for 

a certain degree of operating flexibility. 

When an incumbent rail carrier’s service fails 

to meet the performance standards, and when 

other conditions to a prescription are met 

(including the absence of a valid affirmative 

defense), the Board will consider if it would 

be in the public interest to allow access to 

an alternate rail carrier through prescription 

of a reciprocal switching agreement. To 

facilitate implementation of the new 

regulations, the Board proposes to require 

weekly reporting of certain service data by 

Class I carriers and to grant shippers and 

receivers the right to receive their own 

individualized service data from a Class I 

carrier. The proposed reporting and 

submissions are necessary to the purposes of 

the proposed regulation and therefore to 

enable the Board to implement its statutory 

authority in this important area. 

[FR Doc. 2023–19543 Filed 9–15–23; 8:45 am] 

BILLING CODE 4915–01–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Parts 1144 and 1145 

[Docket No. EP 711 (Sub-No. 1)] 

Reciprocal Switching 

AGENCY: Surface Transportation Board. 

ACTION: Proposed rule; closure of Docket 

No. EP 711 (Sub-docket No. 1). 

SUMMARY: On July 27, 2016, in Docket 

No. EP 711 (Sub-No. 1), the Surface 

Transportation Board (Board or STB) 

proposed to revise its reciprocal 

switching regulations. After considering 

the full record and the developments in 

the freight rail industry, the Board has 

decided not to pursue those revisions 

and to close Docket No. EP 711 (Sub-No. 

1). Instead, in Docket No. EP 711 (SubNo. 2), the Board is proposing a new set 

of regulations that would provide access 

to reciprocal switching when there is 

inadequate service. The Board will 

continue to assess what other action, if 

any, the Board should take with respect 

to reciprocal switching. 

DATES: September 18, 2023. 

ADDRESSES: All filings must be 

submitted to the Surface Transportation 

Board either via e-filing on the Board’s 

website or in writing addressed to 395 

E Street SW, Washington, DC 20423– 

0001. Filings will be posted to the 

Board’s website and need not be served 

on other commenters or any other party 

to the proceedings. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Quinn at (202) 740–5567. If you 

require accommodation under the 

Americans with Disabilities Act, please 

call (202) 245–0245. 

SUPPLEMENTARY INFORMATION: On July 

27, 2016, the Board granted in part a 

petition for rulemaking filed by the 

National Industrial Transportation 

League seeking revised reciprocal 

switching regulations. The Board 

proposed regulations in Docket No. EP 

711 (Sub-No. 1) that would provide for 

prescription of a reciprocal switching 

agreement when either practicable and 

in the public interest or necessary to 

provide competitive rail service. Due to 

developments in the freight rail industry 

since the Board’s 2016 notice, including 

critical and ongoing service problems, 

the Board has decided to focus, at this 

time, its reciprocal switching reforms on 

more specific and objective remedies for 

inadequate rail service. See Reciprocal 

Switching, EP 711 (Sub-No. 1) et al., slip 

op. at 1–21, 31 (STB served Sept. 7, 

2023). See also id. at 7 n.8 (welcoming 

comment on what other actions, if any, 

the Board should consider with respect 

to competitive access and, in particular, 

whether the Board should further 

broaden the application of the public 

interest prong of 49 U.S.C. 11102). 

Accordingly, for the reasons discussed 

in Reciprocal Switching, the Board is 

closing Docket No. EP 711 (Sub-No. 1) 

and is instead proposing, in Docket No. 

EP 711 (Sub-No. 2), a new rule focused 

on more defined processes for the 

prescription of a reciprocal switching 

agreement in cases of inadequate 

service. Notice of the rule proposed in 

Docket No. EP 711 (Sub-No. 2) is being 

published concurrently with this notice. 

That concurrent notice includes the full 

discussion from the Board’s September 

7, 2023 decision, which is fully 

incorporated by reference herein. 

It is ordered: 

1. Docket No. EP 711 (Sub-No. 1) is 

discontinued as of the service date of 

the Board’s decision in Reciprocal 

Switching, EP 711 (Sub-No. 1) et al. 

Decided: September 13, 2023. 

By the Board, Board Members Fuchs, 

Hedlund, Oberman, Primus, and Schultz. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. 2023–20137 Filed 9–15–23; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 230912–0217] 

RIN 0648–BM31 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS is proposing an 

amendment to the Atlantic Large Whale 

Take Reduction Plan (Plan) to expand 

the boundaries of the Massachusetts 

Restricted Area to include the wedge 

between State and Federal waters 


lotter on DSK11XQN23PROD with PROPOSALS1