II 

113TH CONGRESS 

2D SESSION S. 2777 

To establish the Surface Transportation Board as an independent 

establishment, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 8, 2014 

Mr. ROCKEFELLER (for himself and Mr. THUNE) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL 

To establish the Surface Transportation Board as an 

independent establishment, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Surface Transpor5 tation Board Reauthorization Act of 2014’’. 

6 SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE. 

7 Except as otherwise expressly provided, wherever in 

8 this Act an amendment or repeal is expressed in terms 

9 of an amendment to, or repeal of, a section or other proviVerDate Mar 15 2010 23:59 Sep 08, 2014 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2777.IS S2777

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1 sion, the reference shall be considered to be made to a 

2 section or other provision of title 49, United States Code. 

3 SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION 

4 BOARD AS AN INDEPENDENT ESTABLISH5 MENT. 

6 (a) IN GENERAL.—Section 701(a) is amended to 

7 read as follows: 

8 ‘‘(a) ESTABLISHMENT.—The Surface Transportation 

9 Board is an independent establishment of the United 

10 States Government.’’. 

11 (b) CONFORMING AMENDMENTS.— 

12 (1) ADMINISTRATIVE PROVISIONS.—Section 703 

13 is amended— 

14 (A) by striking subsections (a), (c), (f), 

15 and (g); 

16 (B) by redesignating subsections (b), (d), 

17 and (e) as subsections (a), (b), and (c), respec18 tively; and 

19 (C) by adding at the end the following: 

20 ‘‘(d) SUBMISSIONS AND TRANSMITTALS.—Whenever 

21 the Board submits or transmits any budget estimate, 

22 budget request, supplemental budget estimate, or other 

23 budget information, legislative recommendation, prepared 

24 testimony for a congressional hearing, or comment on leg25 islation to the President or to the Office of Management 


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1 and Budget, it shall concurrently transmit a copy thereof 

2 to the Committee on Commerce, Science, and Transpor3 tation of the Senate and the Committee on Transportation 

4 and Infrastructure of the House of Representatives. No 

5 officer or agency of the United States shall have any au6 thority to require the Board to submit its budget estimates 

7 or requests, legislative recommendations, prepared testi8 mony for congressional hearings, or comments on legisla9 tion to any officer or agency of the United States for ap10 proval, comments, or review, prior to the submission of 

11 the recommendations, testimony, or comments to Con12 gress.’’. 

13 (2) ADMINISTRATIVE SUPPORT.— 

14 (A) REPEALER.—Section 725 is repealed. 

15 (B) CONFORMING AMENDMENT.—The 

16 table of contents for chapter 7 is amended by 

17 striking the item relating to section 725. 

18 SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP. 

19 (a) IN GENERAL.—Section 701(b) is amended— 

20 (1) in paragraph (1)— 

21 (A) by striking ‘‘3 members’’ and inserting 

22 ‘‘5 members’’; and 

23 (B) by striking ‘‘2 members’’ and inserting 

24 ‘‘3 members’’; and 


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1 (2) by striking paragraph (2) and inserting the 

2 following: 

3 ‘‘(2) At any given time, at least 3 members of 

4 the Board shall be individuals with professional 

5 standing and demonstrated knowledge in the fields 

6 of transportation, transportation regulation, or eco7 nomic regulation, and at least 2 members shall be 

8 individuals with professional or business experience 

9 (including agriculture or other rail customers) in the 

10 private sector.’’. 

11 (b) REPEAL OF HOLDOVER LIMITATION.—Section 

12 701(b)(3) is amended by striking ‘‘qualified, but for a pe13 riod not to exceed one year’’ and inserting ‘‘qualified’’. 

14 (c) REPEAL OF OBSOLETE PROVISION.—Section 

15 701(b) is amended— 

16 (1) by striking paragraph (4); 

17 (2) by redesignating paragraphs (5), (6), and 

18 (7) as paragraphs (4), (5), and (6), respectively; and 

19 (3) by striking ‘‘In the case of an individual 

20 who becomes a member of the Board pursuant to 

21 paragraph (4), or an individual’’ in paragraph (4), 

22 as redesignated, and inserting ‘‘In the case of an in23 dividual’’. 


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1 SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS. 

2 Section 703(a), as redesignated by section 3 of this 

3 Act, is amended to read as follows: 

4 ‘‘(a) OPEN MEETINGS.— 

5 ‘‘(1) IN GENERAL.—The Board shall be deemed 

6 to be an agency for purposes of section 552b of title 

7 5. 

8 ‘‘(2) NONPUBLIC COLLABORATIVE DISCUS9 SIONS.— 

10 ‘‘(A) IN GENERAL.—Notwithstanding sec11 tion 552b of title 5, a majority of the members 

12 may hold a meeting that is not open to public 

13 observation to discuss official agency business 

14 if— 

15 ‘‘(i) no vote or other disposition of of16 ficial agency business is taken at the meet17 ing; 

18 ‘‘(ii) each individual present at the 

19 meeting is a member or an employee of the 

20 Board; and 

21 ‘‘(iii) the General Counsel of the 

22 Board is present at the meeting. 

23 ‘‘(B) DISCLOSURE OF NONPUBLIC COL24 LABORATIVE DISCUSSIONS.—Except as provided 

25 under subparagraph (C), not later than 2 busi26 ness days after the conclusion of a meeting 


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1 under subparagraph (A), the Board shall make 

2 available to the public, in a place easily acces3 sible to the public— 

4 ‘‘(i) a list of the individuals present at 

5 the meeting; and 

6 ‘‘(ii) a summary of the matters dis7 cussed at the meeting, except for any mat8 ters the Board properly determines may be 

9 withheld from the public under section 

10 552b(c) of title 5. 

11 ‘‘(C) ONGOING PROCEEDINGS.—If a dis12 cussion under subparagraph (A) relates, di13 rectly or indirectly, to an ongoing proceeding 

14 before the Board, the Board shall make the dis15 closure under subparagraph (B) on the date of 

16 the final Board decision. 

17 ‘‘(D) PRESERVATION OF OPEN MEETINGS

18 REQUIREMENTS FOR AGENCY ACTION.—Noth19 ing in this paragraph shall limit the applica20 bility of section 552b of title 5 with respect to 

21 a meeting of the members other than that de22 scribed in this paragraph. 

23 ‘‘(E) STATUTORY CONSTRUCTION.—Noth24 ing in this paragraph— 


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1 ‘‘(i) shall limit the applicability of sec2 tion 552b of title 5 with respect to any in3 formation which is proposed to be withheld 

4 from the public under subparagraph 

5 (B)(ii); and 

6 ‘‘(ii) authorizes the Board to withhold 

7 from any individual any record that is ac8 cessible to that individual under section 

9 552a of title 5, United States Code.’’. 

10 SEC. 6. INVESTIGATIVE AUTHORITY. 

11 (a) AUTHORITY TO INITIATE INVESTIGATIONS.— 

12 Section 11701(a) is amended by striking ‘‘only on com13 plaint’’ and inserting ‘‘on the Board’s own initiative or 

14 on complaint’’. 

15 (b) RATE PROCEEDINGS.—Section 10704(b) is 

16 amended by striking the first sentence and inserting ‘‘The 

17 Board may begin a proceeding under subsection (a)(1) on 

18 its own initiative or upon complaint, except that a pro19 ceeding to determine the reasonableness of the level of a 

20 rate charged by a carrier may only be initiated upon com21 plaint.’’. 

22 (c) ANNUAL REPORT; INVESTIGATIONS.—Section 

23 704 is amended by striking ‘‘on its activities.’’ and insert24 ing ‘‘on its activities, including each instance in which the 


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1 Board has initiated an investigation on its own initiative 

2 under this chapter or subtitle IV.’’. 

3 SEC. 7. PROCEDURES FOR RATE CASES. 

4 (a) SIMPLIFIED PROCEDURE.—Section 10701(d)(3) 

5 is amended to read as follows: 

6 ‘‘(3) The Board shall maintain a simplified and 

7 expedited method for determining the reasonableness 

8 of challenged rates in those cases in which a full 

9 stand-alone cost presentation is too costly, given the 

10 value of the case.’’. 

11 (b) EXPEDITED HANDLING.—Section 10704(d) is 

12 amended by striking the first sentence and inserting ‘‘The 

13 Board shall maintain procedures to ensure expeditious 

14 handling of challenges to the reasonableness of railroad 

15 rates.’’. 

16 SEC. 8. RATE REVIEW TIMELINES. 

17 Section 10704(d), as amended by section 7 of this 

18 Act, is further amended— 

19 (1) by striking ‘‘(d) The’’ and inserting ‘‘(d)(1) 

20 The’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(2)(A) Except as provided under subparagraph 

23 (B), in a stand-alone cost rate challenge, the Board 

24 shall comply with the following timeline: 


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1 ‘‘(i) For discovery, completion not 

2 later than 150 days after the date that the 

3 challenge is initiated. 

4 ‘‘(ii) For development of the evi5 dentiary record, completion not later than 

6 155 days after the date that discovery is 

7 complete under clause (i). 

8 ‘‘(iii) For submission of a closing 

9 brief, submission not later than 60 days 

10 after the date that development of the evi11 dentiary record is complete under clause 

12 (ii). 

13 ‘‘(iv) For a final Board decision, 

14 issuance not later than 180 days after the 

15 date that the last closing brief is submitted 

16 under clause (iii). 

17 ‘‘(B) The Board may extend a timeline 

18 under subparagraph (A) after a request from 

19 any party or in the interest of due process.’’. 

20 SEC. 9. EFFECT OF RATE BUNDLING. 

21 Not later than 180 days after the date of enactment 

22 of this Act, the Surface Transportation Board shall ini23 tiate an ex parte proceeding on whether contract proposals 

24 for multiple origin-to-destination movements have ad25 versely impacted the intent of Congress that the Surface 


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1 Transportation Board’s rate challenge procedures remain 

2 available to shippers that are subject to railroad market 

3 dominance, and how the Board can prevent such practices 

4 in the future. 

5 SEC. 10. REPORT ON RATE CASE METHODOLOGY. 

6 Not later than 1 year after the date of enactment 

7 of this Act, the Surface Transportation Board shall report 

8 to the Committee on Commerce, Science, and Transpor9 tation of the Senate and the Committee on Transportation 

10 and Infrastructure of the House of Representatives on— 

11 (1) whether current methodologies are sufficient 

12 to address the complexity of large rate cases; and 

13 (2) alternative methodologies that could stream14 line and expedite large rate cases. 

15 SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRAC16 TICES, AND COMMON CARRIER SERVICE EX17 PECTATION DISPUTES. 

18 (a) IN GENERAL.—Chapter 117 is amended by add19 ing at the end the following: 

20 ‘‘§ 11709. Arbitration of certain rail rates, practices, 

21 and common carrier service disputes 

22 ‘‘(a) IN GENERAL.—Not later than 1 year after the 

23 date of enactment of the Surface Transportation Board 

24 Reauthorization Act of 2014, the Board shall promulgate 

25 regulations to establish a binding arbitration process to 


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1 resolve rail rate, practice, and common carrier service ex2 pectation complaints subject to the jurisdiction of the 

3 Board. 

4 ‘‘(b) COVERED DISPUTES.—The binding arbitration 

5 process— 

6 ‘‘(1) shall apply to disputes involving rates, 

7 practices, and common carrier service expectations 

8 subject to the jurisdiction of the Board; and 

9 ‘‘(2) shall not apply to— 

10 ‘‘(A) disputes to obtain the grant, denial, 

11 stay, or revocation of any license, authorization, 

12 or exemption, or to prescribe for the future any 

13 conduct, rules, or results of general, industry14 wide applicability, or to enforce a labor protec15 tive condition; and 

16 ‘‘(B) disputes solely between 2 or more rail 

17 carriers. 

18 ‘‘(c) ARBITRATION PROCEDURES.— 

19 ‘‘(1) IN GENERAL.—The Board— 

20 ‘‘(A) may make the binding arbitration 

21 process available only to the relevant parties— 

22 ‘‘(i) after the filing of a formal com23 plaint; or 

24 ‘‘(ii) upon petition by a party at the 

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1 tion process provided by the Board for a 

2 complaint subject to this section; 

3 ‘‘(B) with respect to rate disputes, may 

4 make the binding arbitration process available 

5 only to the relevant parties if the rail carrier 

6 has market dominance, as determined under 

7 section 10707 of this title; and 

8 ‘‘(C) shall determine whether to pursue the 

9 binding arbitration process not later than 30 

10 days after the date that a petition or formal 

11 complaint is filed. 

12 ‘‘(2) LIMITATION.—Initiation of the binding ar13 bitration process shall preclude the Board from sep14 arately reviewing a complaint or dispute related to 

15 the same rail rate, practice, or common carrier serv16 ice expectation in a covered dispute involving the 

17 same parties. 

18 ‘‘(3) RATES.—In resolving a covered dispute in19 volving the reasonableness of a rail carrier’s rates, 

20 the arbitrator or panel of arbitrators, as applicable, 

21 shall consider the Board’s methodologies for setting 

22 maximum lawful rates, giving due consideration to 

23 the need for differential pricing to permit a rail car24 rier to collect adequate revenues within the meaning 

25 of section 10704(a)(2). 


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1 ‘‘(4) SERVICE EXPECTATIONS.—In resolving a 

2 dispute involving common carrier service expecta3 tions, the arbitrator or panel of arbitrators, as appli4 cable, shall consider the rates and service terms, and 

5 any changes thereto, as published or otherwise made 

6 available under subsection (b), (c), or (d) of section 

7 11101. 

8 ‘‘(d) ARBITRATION DECISIONS.—Any decision 

9 reached in an arbitration process under this section— 

10 ‘‘(1) shall— 

11 ‘‘(A) be consistent with subtitle IV; 

12 ‘‘(B) be in writing; 

13 ‘‘(C) contain findings of fact and conclu14 sions; and 

15 ‘‘(D) be binding upon the parties; and 

16 ‘‘(2) shall not have any precedential effect in 

17 any other or subsequent arbitration dispute. 

18 ‘‘(e) TIMELINES.— 

19 ‘‘(1) SELECTION.—An arbitrator or panel of ar20 bitrators shall be selected not later than 14 days 

21 after the date of the Board’s decision to initiate ar22 bitration. 

23 ‘‘(2) EVIDENTIARY PROCESS.—The evidentiary 

24 process of the binding arbitration process shall be 

25 completed not later than 90 days after the date that 


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1 the arbitration process is initiated, unless a party re2 quests an extension and the arbitrator or panel of 

3 arbitrators, as applicable, grants it. 

4 ‘‘(3) DECISION.—The arbitrator or panel of ar5 bitrators, as applicable, shall issue a decision not 

6 later than 30 days after the date that the evi7 dentiary record is closed. 

8 ‘‘(4) EXTENSIONS.—The Board may extend any 

9 of the timelines in this subsection upon the agree10 ment of all parties in the dispute. 

11 ‘‘(f) ARBITRATORS.— 

12 ‘‘(1) IN GENERAL.—Arbitration under this sec13 tion shall be conducted by an arbitrator, or a panel 

14 of arbitrators, selected from a roster, maintained by 

15 the Board, of persons with rail transportation, eco16 nomic regulation, professional or business experi17 ence, including agriculture, in the private sector. 

18 ‘‘(2) SELECTION.— 

19 ‘‘(A) IN GENERAL.—If the parties cannot 

20 mutually agree on an arbitrator, or the lead ar21 bitrator of a panel of arbitrators, the parties 

22 shall select the arbitrator or lead arbitrator 

23 from the roster by alternately striking names 

24 from the roster until only 1 name remains. 


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1 ‘‘(B) PANEL OF ARBITRATORS.—For pur2 poses of this section, a panel of arbitrators shall 

3 be selected as follows: 

4 ‘‘(i) Notwithstanding subparagraph 

5 (A), each party to a dispute shall select 1 

6 arbitrator from the roster. 

7 ‘‘(ii) The parties to a dispute may 

8 mutually select 1 arbitrator from the ros9 ter to serve as the lead arbitrator of the 

10 panel of arbitrators. 

11 ‘‘(3) COST.—The parties shall share the costs 

12 of the arbitration equally. 

13 ‘‘(g) RELIEF.—An arbitral decision under this sec14 tion may award the payment of damages or rate prescrip15 tive relief, but the value of the award shall be limited as 

16 follows: 

17 ‘‘(1) For common carrier service and practice 

18 disputes, the damage award may not exceed 

19 $2,000,000. 

20 ‘‘(2) For rate disputes, the damage award, in21 cluding any rate prescription, may not exceed 

22 $25,000,000, and any rate prescription shall be lim23 ited to not longer than 5 years from the date of the 

24 arbitral decision. 


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1 ‘‘(h) BOARD REVIEW.—If a party appeals a decision 

2 under this section to the Board, the Board may review 

3 the decision under this section to determine if— 

4 ‘‘(1) the decision is consistent with subtitle IV 

5 as applied by the Board; or 

6 ‘‘(2) the award limitation under subsection 

7 (g).’’. 

8 (b) CONFORMING AMENDMENT.—The table of con9 tents for chapter 117 is amended by adding at the end 

10 the following: 

‘‘11709. Arbitration of certain rail rate, practice, and common carrier service 

disputes.’’. 

11 SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE 

12 TRANSPORTATION BOARD. 

13 (a) IN GENERAL.—Section 704, as amended by sec14 tion 6 of this Act, is further amended— 

15 (1) by striking the section heading and insert16 ing the following: 

17 ‘‘§ 704. Reports’’; 

18 (2) by inserting ‘‘(a) ANNUAL REPORT.—’’ be19 fore ‘‘The Board’’ and indenting appropriately; and 

20 (3) by adding at the end the following: 

21 ‘‘(b) COMPLAINTS.— 

22 ‘‘(1) IN GENERAL.—The Board shall establish 

23 and maintain a database of complaints received by 

24 the Board. 


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1 ‘‘(2) QUARTERLY REPORTS.—The Board shall 

2 post a quarterly report of formal and informal serv3 ice complaints received by the Board during the pre4 vious quarter that includes— 

5 ‘‘(A) a list of the type of each complaint; 

6 ‘‘(B) the geographic region of each com7 plaint; and 

8 ‘‘(C) the resolution of each complaint, if 

9 appropriate. 

10 ‘‘(3) WRITTEN CONSENT.—The quarterly report 

11 may identify a complainant that submitted an infor12 mal complaint only upon the written consent of the 

13 complainant. 

14 ‘‘(4) WEBSITE POSTING.—Each quarterly re15 port shall be posted on the Board’s public website.’’. 

16 (b) CONFORMING AMENDMENT.—The table of con17 tents for chapter 7 is amended by striking the item relat18 ing to section 704 and inserting the following: 

‘‘704. Reports.’’. 

19 SEC. 13. QUARTERLY REPORTS. 

20 Not later than 60 days after the date of enactment 

21 of this Act, the Surface Transportation Board shall begin 

22 providing quarterly reports to the Committee on Com23 merce, Science, and Transportation of the Senate and the 

24 Committee on Transportation and Infrastructure of the 

25 House of Representatives on the Surface Transportation 


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1 Board’s progress toward addressing the issues raised in 

2 each unfinished regulatory proceeding, regardless of 

3 whether the proceeding is subject to a statutory or regu4 latory deadline. 

5 SEC. 14. SENSE OF CONGRESS. 

6 It is the sense of Congress that— 

7 (1) as part of Docket No. EP 722, the Surface 

8 Transportation Board should consider the costs and 

9 benefits of the annual determinations of revenue 

10 adequacy for Class I railroads; 

11 (2) the Surface Transportation Board should 

12 review the methodology employed to define the busi13 ness cycle in its annual determination of revenue 

14 adequacy and consider undertaking, if necessary, a 

15 rulemaking to define the business cycle; 

16 (3) as part of Docket No. EP 711, the Surface 

17 Transportation Board should consider if a rule18 making proceeding on mandatory competitive switch19 ing is needed to ensure a viable competitive national 

20 rail system; and 

21 (4) if the Surface Transportation Board deter22 mines a rulemaking proceeding on mandatory com23 petitive switching is needed, the Surface Transpor24 tation Board should ensure that such rulemaking is 

25 completed in as timely a manner as possible. 


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1 SEC. 15. AUTHORIZATION OF APPROPRIATIONS. 

2 Section 705 is amended by striking paragraphs (1) 

3 through (3) and inserting the following: 

4 ‘‘(1) $33,000,000 for fiscal year 2015; 

5 ‘‘(2) $35,000,000 for fiscal year 2016; 

6 ‘‘(3) $35,500,000 for fiscal year 2017; 

7 ‘‘(4) $35,500,000 for fiscal year 2018; and 

8 ‘‘(5) $36,000,000 for fiscal year 2019.’’. 

9 SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS. 

10 (a) EXPIRED RAIL SERVICE CONTRACT LIMITA11 TION.—Section 10709 is amended by striking subsection 

12 (h). 

13 (b) AGENT IN THE DISTRICT OF COLUMBIA.— 

14 (1) DESIGNATION OF AGENT AND SERVICE OF

15 NOTICE.—Section 72 is amended— 

16 (A) in subsection (a), by striking ‘‘in the 

17 District of Columbia,’’; and 

18 (B) in subsection (c), by striking ‘‘in the 

19 District of Columbia’’. 

20 (2) SERVICE OF PROCESS IN COURT PRO21 CEEDINGS.—Section 724(a) is amended by striking 

22 ‘‘in the District of Columbia’’ each place it appears. 

23 SEC. 17. CONSTRUCTION. 

24 Nothing in this Act shall be construed to affect any 

25 suit commenced by or against the Surface Transportation 

26 Board, or any proceeding or challenge pending before the 


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1 Surface Transportation Board, prior to the date of enact2 ment of this Act. 

Æ 


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