Before the U.S. Surface Transportation Board

__________________________________

STB Ex Parte No. 528 (Sub-No. 1)

Publication Requirements for Agricultural Products

_________________________________

Comments of the

U.S. Department of Agriculture

_________________________________

Kevin Shea

Acting Deputy Under Secretary

Marketing and Regulatory Programs

U.S. Department of Agriculture

Washington, D.C. 20250

Date: February 24, 2017
2

Authority and Interest

The Agricultural Adjustment Act of 1938 and the Agricultural Marketing Act of 1946 charge the 

Secretary of Agriculture with the responsibility to represent the interests of agricultural 

producers and shippers in improving transportation services and facilities by, among other 

things, initiating and participating in Surface Transportation Board (Board) proceedings 

involving rates, charges, tariffs, practices, and services.

Introduction

The U.S. Department of Agriculture (USDA) appreciates the opportunity to provide comments 

on the Board’s notice of proposed rulemaking (NPRM) concerning the publication of tariff rates 

and service terms for agricultural products and fertilizers, as well as the Board’s clarifications on 

“standing” and “aggregation.”

The NPRM addresses important issues to the agricultural community, shown in testimony given 

by stakeholders in comments and during the public hearing held June 10, 2015, for Ex Parte 665. 

As USDA’s comments herein indicate, information on tariff rates, service terms, and changes to 

these terms are critical to business decision-making by agricultural producers and shippers. Such 

information needs to be easily available and accessible not only to the agricultural sector, but to 

the public as well. Furthermore, clarifying who may bring a case and whether shippers and/or 

producers can aggregate cases provides additional clarity on who has access to the rate review 

processes, which the agricultural community sees as being too complex, costly, lengthy, and thus

unworkable for the needs of this important sector. USDA is pleased the Board is following-up on 

these additional issues.

Publication of Agricultural Rates

USDA appreciates and supports the Board’s action to update its regulatory language regarding 

the publication of rate and service terms for agricultural products and fertilizer first adopted in 

1996. Over the twenty-plus years since, online systems and websites have become increasingly 

prevalent for commercial and government entities to communicate data, information, and news 

to customers and the wider public.

As noted in the Board’s decision, rail carriers must disclose common carriage rates and service 

terms and, according to the statute, railroads have additional disclosure requirements for 

agricultural products and fertilizer as codified in 49 C.F.R. § 1300.5. One portion of the text in § 

1300.5 is notable and distinct for agriculture from that of general common carriage. It says, “...a 

rail carrier shall publish, make available, and retain for public inspection its currently effective 

rates, schedules of rates, charges, and other service terms, and any scheduled changes to such 

rates, charges, and service terms” (emphasis added). That phrase, “for public inspection,” has 

two important aspects. First, the records must be available to all (the “public”), regardless of 

whether one ships with the railroad or not. Second, the records must be in a useable form for 

examination and inspection.

Availability of Tariff Rates and Terms to the Public

One result of the Staggers Rail Act of 1980 was a growing share of traffic moved under private 

confidential contracts. However, in a recent study, the Transportation Research Board wrote, 

“Despite the general shift toward contracting over the past decade, shippers of some 

commodities, particularly agricultural commodities, have remained users of common carriage. 

Contract carriage grew dramatically among coal and chemical shippers but barely changed 
3

among shippers of corn and wheat.”

1 Grain is the largest commodity-user of tariff freight.2 Thus, 

the availability of tariff rates and service terms is particularly important to agricultural shippers. 

It enables them to make better decisions by more accurately assigning relative values to various 

routes and their associated destination markets. Furthermore, agricultural shippers have the 

option to enter into private contracts with railroads that may involve below-tariff rates. Since the 

Board does not have jurisdiction over contracted rates, tariff rates and associated service terms

can act as “a ceiling” on contract rates and terms. However, for that to work, the tariff rates and 

terms must be easily available to and known by shippers, as well as the public.

Railroads have generally made rates available online, but some require user accounts, which 

require approval and can create unreasonable delays for shippers and the public. Furthermore, 

one major railroad asks shippers “to email” the appropriate group for a rate, but does not appear 

to store the results of these inquiries online for others to access. Whether or not the railroad posts 

tariff rates and service information online and where to obtain this information on the website is 

not clear for all railroads. As per the statute, this information should be easily available to anyone 

that wants it.

USDA appreciates the Board availing its Office of Public Assistance, Government Affairs, and 

Compliance for parties having difficulty in accessing tariff rates and terms. Testimony during the 

hearing showed that shippers have reported issues of difficulty and delay in accessing these 

published rates. While railroads can require web users to register for an account, they should not 

delay registration approvals or reject requests from the public. Moreover, where and how

shippers and the public access this information must be clear.

Accessibility of Tariff Rates and Terms for Inspection

Simply posting the tariff rates and terms may not make them usable to shippers and the public

for inspection. They must also be accessible. Shippers have argued the Class I railroads should 

make their tariff rate and service documents more apparent, accessible, and user-friendly. Class I 

railroads provide tariff and service term information on their websites in varying degrees of easeof-access and consistency. Most railroads have “pricing portals,” which offer a handy way to 

search and find rates given the shipment’s criteria, such as product, origin, and destination. These 

tools offer a more efficient way to gain desired information as opposed to combing through 

many PDFs, some of which may be expired or unsearchable. However, some railroads only 

provide the information, such as schedules of rates, in PDF-form, which is less accessible to 

shippers and the public, and is difficult to use. USDA recommends the Board require railroads to 

retain these records (e.g., rates, schedules of rates, etc.) where appropriate in a machine-readable 

format.

Standing and Aggregation Issues

Agricultural shippers have voiced considerable concern over unreasonable rates on the record in 

Ex Parte 665 and elsewhere, as well as concerns about unworkability of the rate grievance 

processes available to them. Thus, USDA appreciates the Board clarifying the issues of standing 

and aggregation in this NPRM and acknowledging, “...the statute permits parties to bring a rate 

complaint, even if they have not been directly harmed or did not directly pay for the 

 

1 Transportation Research Board, Special Report 318, Modernizing Freight Rail Regulation, 2015.

2

Ibid.
transportation for which relief is sought." Further, USDA welcomes the Board confirming, 

"...parties may seek to aggregate their rate claims."3 

Agriculture is a unique industry, where the entity that pays the freight (i.e., the shipper) is not 

always the same as the entity that bears the cost (i.e., the agricultural growers and producers). 

The agricultural community has sought clarification on whether agricultural producers, who do 

not directly pay the freight, have legal standing to pursue a rate case. The NPRM helps remove 

the uncertainty and makes it clear that producers have standing in the rate relief process. 

Clarification on whether or not agricultural shippers can aggregate cases is also important. These 

shippers have found the legal process to challenge potentially unreasonable rates too costly and 

unusable. They have pointed out that the potential value of a successful rate relief case is not 

enough to justify the high costs of litigation. Single, small agricultural shippers may have an 

especially difficult time justifying pursuit of a rate case, given the small volume of their 

shipments. However, multiple small shippers combined into a single case might make rate relief 

a viable option. The NPRM helps remove the uncertainty on shippers' ability to aggregate cases 

and the circumstances needed for such aggregation. Explicitly allowing aggregation is an 

important step toward making the rate review mechanisms more usable to agricultural producers 

and shippers. 

Conclusions 

USDA appreciates the Board's efforts to address these important issues to shippers of 

agricultural products in the NPRM. Agriculture, in particular, has continued to ship large 

amounts of traffic via common carriage, even with railroads seeing growth in contracts from 

other commodities. Agricultural stakeholders therefore rely heavily on public tariff rates and 

service terms. They are a necessary component to making informed decisions and can act as a 

"ceiling" when agricultural shippers elect to pursue a contract. Finally, clarification on standing 

and aggregation helps reduce uncertainty for the Board's rate review processes. 

Respectfully submitted, 

ketki;‘, 

Kevin Shea 

Acting Deputy Under Secretary 

Marketing and Regulatory Programs 

U.S. Department of Agriculture 

Washington, D.C. 20250 

3Surface Transportation Board decision, Ex Parte 528 Sub-No. 1, Publication Requirements for Agricultural 

Products, December 29, 2016. 

4