```

[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2777 Reported in Senate (RS)]

                                                       Calendar No. 624
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, Mr. Thune, and Ms. Baldwin) introduced 
the following bill; which was read twice and referred to the Committee 
                on Commerce, Science, and Transportation

                            December 8, 2014

             Reported by Mr. Rockefeller, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
    To establish the Surface Transportation Board as an independent 
                 establishment, and for other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Surface Transportation 
Board Reauthorization Act of 2014''.</DELETED>

<DELETED>SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE.</DELETED>

<DELETED>    Except as otherwise expressly provided, wherever in this 
Act an amendment or repeal is expressed in terms of an amendment to, or 
repeal of, a section or other provision, the reference shall be 
considered to be made to a section or other provision of title 49, 
United States Code.</DELETED>

<DELETED>SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION BOARD AS AN 
              INDEPENDENT ESTABLISHMENT.</DELETED>

<DELETED>    (a) In General.--Section 701(a) is amended to read as 
follows:</DELETED>
<DELETED>    ``(a) Establishment.--The Surface Transportation Board is 
an independent establishment of the United States 
Government.''.</DELETED>
<DELETED>    (b) Conforming Amendments.--</DELETED>
        <DELETED>    (1) Administrative provisions.--Section 703 is 
        amended--</DELETED>
                <DELETED>    (A) by striking subsections (a), (c), (f), 
                and (g);</DELETED>
                <DELETED>    (B) by redesignating subsections (b), (d), 
                and (e) as subsections (a), (b), and (c), respectively; 
                and</DELETED>
                <DELETED>    (C) by adding at the end the 
                following:</DELETED>
<DELETED>    ``(d) Submissions and Transmittals.--Whenever the Board 
submits or transmits any budget estimate, budget request, supplemental 
budget estimate, or other budget information, legislative 
recommendation, prepared testimony for a congressional hearing, or 
comment on legislation to the President or to the Office of Management 
and Budget, it shall concurrently transmit a copy thereof to the 
Committee on Commerce, Science, and Transportation of the Senate and 
the Committee on Transportation and Infrastructure of the House of 
Representatives. No officer or agency of the United States shall have 
any authority to require the Board to submit its budget estimates or 
requests, legislative recommendations, prepared testimony for 
congressional hearings, or comments on legislation to any officer or 
agency of the United States for approval, comments, or review, prior to 
the submission of the recommendations, testimony, or comments to 
Congress.''.</DELETED>
        <DELETED>    (2) Administrative support.--</DELETED>
                <DELETED>    (A) Repealer.--Section 725 is 
                repealed.</DELETED>
                <DELETED>    (B) Conforming amendment.--The table of 
                contents for chapter 7 is amended by striking the item 
                relating to section 725.</DELETED>

<DELETED>SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP.</DELETED>

<DELETED>    (a) In General.--Section 701(b) is amended--</DELETED>
        <DELETED>    (1) in paragraph (1)--</DELETED>
                <DELETED>    (A) by striking ``3 members'' and 
                inserting ``5 members''; and</DELETED>
                <DELETED>    (B) by striking ``2 members'' and 
                inserting ``3 members''; and</DELETED>
        <DELETED>    (2) by striking paragraph (2) and inserting the 
        following:</DELETED>
        <DELETED>    ``(2) At any given time, at least 3 members of the 
        Board shall be individuals with professional standing and 
        demonstrated knowledge in the fields of transportation, 
        transportation regulation, or economic regulation, and at least 
        2 members shall be individuals with professional or business 
        experience (including agriculture or other rail customers) in 
        the private sector.''.</DELETED>
<DELETED>    (b) Repeal of Holdover Limitation.--Section 701(b)(3) is 
amended by striking ``qualified, but for a period not to exceed one 
year'' and inserting ``qualified''.</DELETED>
<DELETED>    (c) Repeal of Obsolete Provision.--Section 701(b) is 
amended--</DELETED>
        <DELETED>    (1) by striking paragraph (4);</DELETED>
        <DELETED>    (2) by redesignating paragraphs (5), (6), and (7) 
        as paragraphs (4), (5), and (6), respectively; and</DELETED>
        <DELETED>    (3) by striking ``In the case of an individual who 
        becomes a member of the Board pursuant to paragraph (4), or an 
        individual'' in paragraph (4), as redesignated, and inserting 
        ``In the case of an individual''.</DELETED>

<DELETED>SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS.</DELETED>

<DELETED>    Section 703(a), as redesignated by section 3 of this Act, 
is amended to read as follows:</DELETED>
<DELETED>    ``(a) Open Meetings.--</DELETED>
        <DELETED>    ``(1) In general.--The Board shall be deemed to be 
        an agency for purposes of section 552b of title 5.</DELETED>
        <DELETED>    ``(2) Nonpublic collaborative discussions.--
        </DELETED>
                <DELETED>    ``(A) In general.--Notwithstanding section 
                552b of title 5, a majority of the members may hold a 
                meeting that is not open to public observation to 
                discuss official agency business if--</DELETED>
                        <DELETED>    ``(i) no vote or other disposition 
                        of official agency business is taken at the 
                        meeting;</DELETED>
                        <DELETED>    ``(ii) each individual present at 
                        the meeting is a member or an employee of the 
                        Board; and</DELETED>
                        <DELETED>    ``(iii) the General Counsel of the 
                        Board is present at the meeting.</DELETED>
                <DELETED>    ``(B) Disclosure of nonpublic 
                collaborative discussions.--Except as provided under 
                subparagraph (C), not later than 2 business days after 
                the conclusion of a meeting under subparagraph (A), the 
                Board shall make available to the public, in a place 
                easily accessible to the public--</DELETED>
                        <DELETED>    ``(i) a list of the individuals 
                        present at the meeting; and</DELETED>
                        <DELETED>    ``(ii) a summary of the matters 
                        discussed at the meeting, except for any 
                        matters the Board properly determines may be 
                        withheld from the public under section 552b(c) 
                        of title 5.</DELETED>
                <DELETED>    ``(C) Ongoing proceedings.--If a 
                discussion under subparagraph (A) relates, directly or 
                indirectly, to an ongoing proceeding before the Board, 
                the Board shall make the disclosure under subparagraph 
                (B) on the date of the final Board decision.</DELETED>
                <DELETED>    ``(D) Preservation of open meetings 
                requirements for agency action.--Nothing in this 
                paragraph shall limit the applicability of section 552b 
                of title 5 with respect to a meeting of the members 
                other than that described in this paragraph.</DELETED>
                <DELETED>    ``(E) Statutory construction.--Nothing in 
                this paragraph--</DELETED>
                        <DELETED>    ``(i) shall limit the 
                        applicability of section 552b of title 5 with 
                        respect to any information which is proposed to 
                        be withheld from the public under subparagraph 
                        (B)(ii); and</DELETED>
                        <DELETED>    ``(ii) authorizes the Board to 
                        withhold from any individual any record that is 
                        accessible to that individual under section 
                        552a of title 5, United States 
                        Code.''.</DELETED>

<DELETED>SEC. 6. INVESTIGATIVE AUTHORITY.</DELETED>

<DELETED>    (a) Authority To Initiate Investigations.--Section 
11701(a) is amended by striking ``only on complaint'' and inserting 
``on the Board's own initiative or on complaint''.</DELETED>
<DELETED>    (b) Rate Proceedings.--Section 10704(b) is amended by 
striking the first sentence and inserting ``The Board may begin a 
proceeding under subsection (a)(1) on its own initiative or upon 
complaint, except that a proceeding to determine the reasonableness of 
the level of a rate charged by a carrier may only be initiated upon 
complaint.''.</DELETED>
<DELETED>    (c) Annual Report; Investigations.--Section 704 is amended 
by striking ``on its activities.'' and inserting ``on its activities, 
including each instance in which the Board has initiated an 
investigation on its own initiative under this chapter or subtitle 
IV.''.</DELETED>

<DELETED>SEC. 7. PROCEDURES FOR RATE CASES.</DELETED>

<DELETED>    (a) Simplified Procedure.--Section 10701(d)(3) is amended 
to read as follows:</DELETED>
        <DELETED>    ``(3) The Board shall maintain a simplified and 
        expedited method for determining the reasonableness of 
        challenged rates in those cases in which a full stand-alone 
        cost presentation is too costly, given the value of the 
        case.''.</DELETED>
<DELETED>    (b) Expedited Handling.--Section 10704(d) is amended by 
striking the first sentence and inserting ``The Board shall maintain 
procedures to ensure expeditious handling of challenges to the 
reasonableness of railroad rates.''.</DELETED>

<DELETED>SEC. 8. RATE REVIEW TIMELINES.</DELETED>

<DELETED>    Section 10704(d), as amended by section 7 of this Act, is 
further amended--</DELETED>
        <DELETED>    (1) by striking ``(d) The'' and inserting ``(d)(1) 
        The''; and</DELETED>
        <DELETED>    (2) by adding at the end the following:</DELETED>
        <DELETED>    ``(2)(A) Except as provided under subparagraph 
        (B), in a stand-alone cost rate challenge, the Board shall 
        comply with the following timeline:</DELETED>
                        <DELETED>    ``(i) For discovery, completion 
                        not later than 150 days after the date that the 
                        challenge is initiated.</DELETED>
                        <DELETED>    ``(ii) For development of the 
                        evidentiary record, completion not later than 
                        155 days after the date that discovery is 
                        complete under clause (i).</DELETED>
                        <DELETED>    ``(iii) For submission of a 
                        closing brief, submission not later than 60 
                        days after the date that development of the 
                        evidentiary record is complete under clause 
                        (ii).</DELETED>
                        <DELETED>    ``(iv) For a final Board decision, 
                        issuance not later than 180 days after the date 
                        that the last closing brief is submitted under 
                        clause (iii).</DELETED>
                <DELETED>    ``(B) The Board may extend a timeline 
                under subparagraph (A) after a request from any party 
                or in the interest of due process.''.</DELETED>

<DELETED>SEC. 9. EFFECT OF RATE BUNDLING.</DELETED>

<DELETED>    Not later than 180 days after the date of enactment of 
this Act, the Surface Transportation Board shall initiate an ex parte 
proceeding on whether contract proposals for multiple origin-to-
destination movements have adversely impacted the intent of Congress 
that the Surface Transportation Board's rate challenge procedures 
remain available to shippers that are subject to railroad market 
dominance, and how the Board can prevent such practices in the 
future.</DELETED>

<DELETED>SEC. 10. REPORT ON RATE CASE METHODOLOGY.</DELETED>

<DELETED>    Not later than 1 year after the date of enactment of this 
Act, the Surface Transportation Board shall report to the Committee on 
Commerce, Science, and Transportation of the Senate and the Committee 
on Transportation and Infrastructure of the House of Representatives 
on--</DELETED>
        <DELETED>    (1) whether current methodologies are sufficient 
        to address the complexity of large rate cases; and</DELETED>
        <DELETED>    (2) alternative methodologies that could 
        streamline and expedite large rate cases.</DELETED>

<DELETED>SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRACTICES, AND 
              COMMON CARRIER SERVICE EXPECTATION DISPUTES.</DELETED>

<DELETED>    (a) In General.--Chapter 117 is amended by adding at the 
end the following:</DELETED>
<DELETED>``Sec. 11709. Arbitration of certain rail rates, practices, 
              and common carrier service disputes</DELETED>
<DELETED>    ``(a) In General.--Not later than 1 year after the date of 
enactment of the Surface Transportation Board Reauthorization Act of 
2014, the Board shall promulgate regulations to establish a binding 
arbitration process to resolve rail rate, practice, and common carrier 
service expectation complaints subject to the jurisdiction of the 
Board.</DELETED>
<DELETED>    ``(b) Covered Disputes.--The binding arbitration process--
</DELETED>
        <DELETED>    ``(1) shall apply to disputes involving rates, 
        practices, and common carrier service expectations subject to 
        the jurisdiction of the Board; and</DELETED>
        <DELETED>    ``(2) shall not apply to--</DELETED>
                <DELETED>    ``(A) disputes to obtain the grant, 
                denial, stay, or revocation of any license, 
                authorization, or exemption, or to prescribe for the 
                future any conduct, rules, or results of general, 
                industry-wide applicability, or to enforce a labor 
                protective condition; and</DELETED>
                <DELETED>    ``(B) disputes solely between 2 or more 
                rail carriers.</DELETED>
<DELETED>    ``(c) Arbitration Procedures.--</DELETED>
        <DELETED>    ``(1) In general.--The Board--</DELETED>
                <DELETED>    ``(A) may make the binding arbitration 
                process available only to the relevant parties--
                </DELETED>
                        <DELETED>    ``(i) after the filing of a formal 
                        complaint; or</DELETED>
                        <DELETED>    ``(ii) upon petition by a party at 
                        the conclusion of any informal dispute 
                        resolution process provided by the Board for a 
                        complaint subject to this section;</DELETED>
                <DELETED>    ``(B) with respect to rate disputes, may 
                make the binding arbitration process available only to 
                the relevant parties if the rail carrier has market 
                dominance, as determined under section 10707 of this 
                title; and</DELETED>
                <DELETED>    ``(C) shall determine whether to pursue 
                the binding arbitration process not later than 30 days 
                after the date that a petition or formal complaint is 
                filed.</DELETED>
        <DELETED>    ``(2) Limitation.--Initiation of the binding 
        arbitration process shall preclude the Board from separately 
        reviewing a complaint or dispute related to the same rail rate, 
        practice, or common carrier service expectation in a covered 
        dispute involving the same parties.</DELETED>
        <DELETED>    ``(3) Rates.--In resolving a covered dispute 
        involving the reasonableness of a rail carrier's rates, the 
        arbitrator or panel of arbitrators, as applicable, shall 
        consider the Board's methodologies for setting maximum lawful 
        rates, giving due consideration to the need for differential 
        pricing to permit a rail carrier to collect adequate revenues 
        within the meaning of section 10704(a)(2).</DELETED>
        <DELETED>    ``(4) Service expectations.--In resolving a 
        dispute involving common carrier service expectations, the 
        arbitrator or panel of arbitrators, as applicable, shall 
        consider the rates and service terms, and any changes thereto, 
        as published or otherwise made available under subsection (b), 
        (c), or (d) of section 11101.</DELETED>
<DELETED>    ``(d) Arbitration Decisions.--Any decision reached in an 
arbitration process under this section--</DELETED>
        <DELETED>    ``(1) shall--</DELETED>
                <DELETED>    ``(A) be consistent with subtitle 
                IV;</DELETED>
                <DELETED>    ``(B) be in writing;</DELETED>
                <DELETED>    ``(C) contain findings of fact and 
                conclusions; and</DELETED>
                <DELETED>    ``(D) be binding upon the parties; 
                and</DELETED>
        <DELETED>    ``(2) shall not have any precedential effect in 
        any other or subsequent arbitration dispute.</DELETED>
<DELETED>    ``(e) Timelines.--</DELETED>
        <DELETED>    ``(1) Selection.--An arbitrator or panel of 
        arbitrators shall be selected not later than 14 days after the 
        date of the Board's decision to initiate arbitration.</DELETED>
        <DELETED>    ``(2) Evidentiary process.--The evidentiary 
        process of the binding arbitration process shall be completed 
        not later than 90 days after the date that the arbitration 
        process is initiated, unless a party requests an extension and 
        the arbitrator or panel of arbitrators, as applicable, grants 
        it.</DELETED>
        <DELETED>    ``(3) Decision.--The arbitrator or panel of 
        arbitrators, as applicable, shall issue a decision not later 
        than 30 days after the date that the evidentiary record is 
        closed.</DELETED>
        <DELETED>    ``(4) Extensions.--The Board may extend any of the 
        timelines in this subsection upon the agreement of all parties 
        in the dispute.</DELETED>
<DELETED>    ``(f) Arbitrators.--</DELETED>
        <DELETED>    ``(1) In general.--Arbitration under this section 
        shall be conducted by an arbitrator, or a panel of arbitrators, 
        selected from a roster, maintained by the Board, of persons 
        with rail transportation, economic regulation, professional or 
        business experience, including agriculture, in the private 
        sector.</DELETED>
        <DELETED>    ``(2) Selection.--</DELETED>
                <DELETED>    ``(A) In general.--If the parties cannot 
                mutually agree on an arbitrator, or the lead arbitrator 
                of a panel of arbitrators, the parties shall select the 
                arbitrator or lead arbitrator from the roster by 
                alternately striking names from the roster until only 1 
                name remains.</DELETED>
                <DELETED>    ``(B) Panel of arbitrators.--For purposes 
                of this section, a panel of arbitrators shall be 
                selected as follows:</DELETED>
                        <DELETED>    ``(i) Notwithstanding subparagraph 
                        (A), each party to a dispute shall select 1 
                        arbitrator from the roster.</DELETED>
                        <DELETED>    ``(ii) The parties to a dispute 
                        may mutually select 1 arbitrator from the 
                        roster to serve as the lead arbitrator of the 
                        panel of arbitrators.</DELETED>
        <DELETED>    ``(3) Cost.--The parties shall share the costs of 
        the arbitration equally.</DELETED>
<DELETED>    ``(g) Relief.--An arbitral decision under this section may 
award the payment of damages or rate prescriptive relief, but the value 
of the award shall be limited as follows:</DELETED>
        <DELETED>    ``(1) For common carrier service and practice 
        disputes, the damage award may not exceed $2,000,000.</DELETED>
        <DELETED>    ``(2) For rate disputes, the damage award, 
        including any rate prescription, may not exceed $25,000,000, 
        and any rate prescription shall be limited to not longer than 5 
        years from the date of the arbitral decision.</DELETED>
<DELETED>    ``(h) Board Review.--If a party appeals a decision under 
this section to the Board, the Board may review the decision under this 
section to determine if--</DELETED>
        <DELETED>    ``(1) the decision is consistent with subtitle IV 
        as applied by the Board; or</DELETED>
        <DELETED>    ``(2) the award limitation under subsection 
        (g).''.</DELETED>
<DELETED>    (b) Conforming Amendment.--The table of contents for 
chapter 117 is amended by adding at the end the following:</DELETED>

<DELETED>``11709. Arbitration of certain rail rate, practice, and 
                            common carrier service disputes.''.

<DELETED>SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE TRANSPORTATION 
              BOARD.</DELETED>

<DELETED>    (a) In General.--Section 704, as amended by section 6 of 
this Act, is further amended--</DELETED>
        <DELETED>    (1) by striking the section heading and inserting 
        the following:</DELETED>
<DELETED>``Sec. 704. Reports'';</DELETED>
        <DELETED>    (2) by inserting ``(a) Annual Report.--'' before 
        ``The Board'' and indenting appropriately; and</DELETED>
        <DELETED>    (3) by adding at the end the following:</DELETED>
<DELETED>    ``(b) Complaints.--</DELETED>
        <DELETED>    ``(1) In general.--The Board shall establish and 
        maintain a database of complaints received by the 
        Board.</DELETED>
        <DELETED>    ``(2) Quarterly reports.--The Board shall post a 
        quarterly report of formal and informal service complaints 
        received by the Board during the previous quarter that 
        includes--</DELETED>
                <DELETED>    ``(A) a list of the type of each 
                complaint;</DELETED>
                <DELETED>    ``(B) the geographic region of each 
                complaint; and</DELETED>
                <DELETED>    ``(C) the resolution of each complaint, if 
                appropriate.</DELETED>
        <DELETED>    ``(3) Written consent.--The quarterly report may 
        identify a complainant that submitted an informal complaint 
        only upon the written consent of the complainant.</DELETED>
        <DELETED>    ``(4) Website posting.--Each quarterly report 
        shall be posted on the Board's public website.''.</DELETED>
<DELETED>    (b) Conforming Amendment.--The table of contents for 
chapter 7 is amended by striking the item relating to section 704 and 
inserting the following:</DELETED>

<DELETED>``704. Reports.''.

<DELETED>SEC. 13. QUARTERLY REPORTS.</DELETED>

<DELETED>    Not later than 60 days after the date of enactment of this 
Act, the Surface Transportation Board shall begin providing quarterly 
reports to the Committee on Commerce, Science, and Transportation of 
the Senate and the Committee on Transportation and Infrastructure of 
the House of Representatives on the Surface Transportation Board's 
progress toward addressing the issues raised in each unfinished 
regulatory proceeding, regardless of whether the proceeding is subject 
to a statutory or regulatory deadline.</DELETED>

<DELETED>SEC. 14. SENSE OF CONGRESS.</DELETED>

<DELETED>    It is the sense of Congress that--</DELETED>
        <DELETED>    (1) as part of Docket No. EP 722, the Surface 
        Transportation Board should consider the costs and benefits of 
        the annual determinations of revenue adequacy for Class I 
        railroads;</DELETED>
        <DELETED>    (2) the Surface Transportation Board should review 
        the methodology employed to define the business cycle in its 
        annual determination of revenue adequacy and consider 
        undertaking, if necessary, a rulemaking to define the business 
        cycle;</DELETED>
        <DELETED>    (3) as part of Docket No. EP 711, the Surface 
        Transportation Board should consider if a rulemaking proceeding 
        on mandatory competitive switching is needed to ensure a viable 
        competitive national rail system; and</DELETED>
        <DELETED>    (4) if the Surface Transportation Board determines 
        a rulemaking proceeding on mandatory competitive switching is 
        needed, the Surface Transportation Board should ensure that 
        such rulemaking is completed in as timely a manner as 
        possible.</DELETED>

<DELETED>SEC. 15. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    Section 705 is amended by striking paragraphs (1) through 
(3) and inserting the following:</DELETED>
        <DELETED>    ``(1) $33,000,000 for fiscal year 2015;</DELETED>
        <DELETED>    ``(2) $35,000,000 for fiscal year 2016;</DELETED>
        <DELETED>    ``(3) $35,500,000 for fiscal year 2017;</DELETED>
        <DELETED>    ``(4) $35,500,000 for fiscal year 2018; 
        and</DELETED>
        <DELETED>    ``(5) $36,000,000 for fiscal year 
        2019.''.</DELETED>

<DELETED>SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS.</DELETED>

<DELETED>    (a) Expired Rail Service Contract Limitation.--Section 
10709 is amended by striking subsection (h).</DELETED>
<DELETED>    (b) Agent in the District of Columbia.--</DELETED>
        <DELETED>    (1) Designation of agent and service of notice.--
        Section 72 is amended--</DELETED>
                <DELETED>    (A) in subsection (a), by striking ``in 
                the District of Columbia,''; and</DELETED>
                <DELETED>    (B) in subsection (c), by striking ``in 
                the District of Columbia''.</DELETED>
        <DELETED>    (2) Service of process in court proceedings.--
        Section 724(a) is amended by striking ``in the District of 
        Columbia'' each place it appears.</DELETED>

<DELETED>SEC. 17. CONSTRUCTION.</DELETED>

<DELETED>    Nothing in this Act shall be construed to affect any suit 
commenced by or against the Surface Transportation Board, or any 
proceeding or challenge pending before the Surface Transportation 
Board, prior to the date of enactment of this Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Surface Transportation Board 
Reauthorization Act of 2014''.

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

    Except as otherwise expressly provided, wherever in this Act an 
amendment or repeal is expressed in terms of an amendment to, or repeal 
of, a section or other provision, the reference shall be considered to 
be made to a section or other provision of title 49, United States 
Code.

SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION BOARD AS AN INDEPENDENT 
              ESTABLISHMENT.

    (a) In General.--Section 701(a) is amended to read as follows:
    ``(a) Establishment.--The Surface Transportation Board is an 
independent establishment of the United States Government.''.
    (b) Conforming Amendments.--
            (1) Administrative provisions.--Section 703 is amended--
                    (A) by striking subsections (a), (c), (f), and (g);
                    (B) by redesignating subsections (b), (d), and (e) 
                as subsections (a), (b), and (c), respectively; and
                    (C) by adding at the end the following:
    ``(d) Submissions and Transmittals.--Whenever the Board submits or 
transmits any budget estimate, budget request, supplemental budget 
estimate, or other budget information, legislative recommendation, 
prepared testimony for a congressional hearing, or comment on 
legislation to the President or to the Office of Management and Budget, 
it shall concurrently transmit a copy thereof to the Committee on 
Commerce, Science, and Transportation of the Senate and the Committee 
on Transportation and Infrastructure of the House of Representatives. 
No officer or agency of the United States shall have any authority to 
require the Board to submit its budget estimates or requests, 
legislative recommendations, prepared testimony for congressional 
hearings, or comments on legislation to any officer or agency of the 
United States for approval, comments, or review, prior to the 
submission of the recommendations, testimony, or comments to 
Congress.''.
            (2) Administrative support.--
                    (A) Repealer.--Section 725 is repealed.
                    (B) Conforming amendment.--The table of contents 
                for chapter 7 is amended by striking the item relating 
                to section 725.
    (c) Department of Transportation Inspector General Authority.--
            (1) In general.--Subchapter II of chapter 7 is amended--
                    (A) by redesignating section 727 as section 728; 
                and
                    (B) by inserting after section 726 the following:
``Sec. 727. Authority of the Inspector General
    ``(a) In General.--The Inspector General of the Department of 
Transportation, in accordance with the mission of the Inspector General 
to prevent and detect fraud and abuse, shall have authority to review 
only the financial management, property management, and business 
operations of the Surface Transportation Board, including internal 
accounting and administrative control systems, to determine compliance 
with applicable Federal laws, rules, and regulations.
    ``(b) Duties.--In carrying out this section, the Inspector General 
shall--
            ``(1) keep the Chairman of the Board and the Committee on 
        Commerce, Science, and Transportation of the Senate and the 
        Committee on Transportation and Infrastructure of the House of 
        Representatives fully and currently informed about problems 
        relating to administration of the internal accounting and 
        administrative control systems of the Board;
            ``(2) issue findings and recommendations for actions to 
        address such problems; and
            ``(3) report periodically to the Committee on Commerce, 
        Science, and Transportation of the Senate and the Committee on 
        Transportation and Infrastructure of the House of 
        Representatives on any progress made in implementing actions to 
        address such problems.
    ``(c) Access to Information.--In carrying out this section, the 
Inspector General may exercise authorities granted to the Inspector 
General under subsections (a) and (b) of section 6 of the Inspector 
General Act of 1978 (5 U.S.C. App.).
    ``(d) Authorization of Appropriations.--
            ``(1) Funding.--There are authorized to be appropriated to 
        the Secretary of Transportation for use by the Inspector 
        General of the Department of Transportation such sums as may be 
        necessary to cover expenses associated with activities pursuant 
        to the authority exercised under this section.
            ``(2) Reimbursable agreement.--In the absence of an 
        appropriation under this subsection for an expense referred to 
        in paragraph (1), the Inspector General and the Board shall 
        have a reimbursable agreement to cover such expense.''.
            (2) Conforming amendment.--The table of contents for 
        subchapter II of chapter 7 is amended--
                    (A) by redesignating the item relating to section 
                727 as relating to section 728; and
                    (B) by inserting after the item relating to section 
                726 the following:

``727. Authority of the Inspector General.''.

SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP.

    (a) In General.--Section 701(b) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``3 members'' and inserting ``5 
                members''; and
                    (B) by striking ``2 members'' and inserting ``3 
                members''; and
            (2) by striking paragraph (2) and inserting the following:
            ``(2) At any given time, at least 3 members of the Board 
        shall be individuals with professional standing and 
        demonstrated knowledge in the fields of transportation, 
        transportation regulation, or economic regulation, and at least 
        2 members shall be individuals with professional or business 
        experience (including agriculture or other rail customers) in 
        the private sector.''.
    (b) Repeal of Holdover Limitation.--Section 701(b)(3) is amended by 
striking ``qualified, but for a period not to exceed one year'' and 
inserting ``qualified''.
    (c) Repeal of Obsolete Provision.--Section 701(b) is amended--
            (1) by striking paragraph (4);
            (2) by redesignating paragraphs (5), (6), and (7) as 
        paragraphs (4), (5), and (6), respectively; and
            (3) in paragraph (4), as redesignated, by striking ``In the 
        case of an individual who becomes a member of the Board 
        pursuant to paragraph (4), or an individual'' and inserting 
        ``In the case of an individual''.

SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS.

    Section 703(a), as redesignated by section 3 of this Act, is 
amended to read as follows:
    ``(a) Open Meetings.--
            ``(1) In general.--The Board shall be deemed to be an 
        agency for purposes of section 552b of title 5.
            ``(2) Nonpublic collaborative discussions.--
                    ``(A) In general.--Notwithstanding section 552b of 
                title 5, a majority of the members may hold a meeting 
                that is not open to public observation to discuss 
                official agency business if--
                            ``(i) no vote or other disposition of 
                        official agency business is taken at the 
                        meeting;
                            ``(ii) each individual present at the 
                        meeting is a member or an employee of the 
                        Board; and
                            ``(iii) the General Counsel of the Board is 
                        present at the meeting.
                    ``(B) Disclosure of nonpublic collaborative 
                discussions.--Except as provided under subparagraph 
                (C), not later than 2 business days after the 
                conclusion of a meeting under subparagraph (A), the 
                Board shall make available to the public, in a place 
                easily accessible to the public--
                            ``(i) a list of the individuals present at 
                        the meeting; and
                            ``(ii) a summary of the matters discussed 
                        at the meeting, except for any matters the 
                        Board properly determines may be withheld from 
                        the public under section 552b(c) of title 5.
                    ``(C) Ongoing proceedings.--If a discussion under 
                subparagraph (A) relates, directly or indirectly, to an 
                ongoing proceeding before the Board, the Board shall 
                make the disclosure under subparagraph (B) on the date 
                of the final Board decision.
                    ``(D) Preservation of open meetings requirements 
                for agency action.--Nothing in this paragraph shall 
                limit the applicability of section 552b of title 5 with 
                respect to a meeting of the members other than that 
                described in this paragraph.
                    ``(E) Statutory construction.--Nothing in this 
                paragraph--
                            ``(i) shall limit the applicability of 
                        section 552b of title 5 with respect to any 
                        information which is proposed to be withheld 
                        from the public under subparagraph (B)(ii); and
                            ``(ii) authorizes the Board to withhold 
                        from any individual any record that is 
                        accessible to that individual under section 
                        552a of title 5, United States Code.''.

SEC. 6. INVESTIGATIVE AUTHORITY.

    (a) Authority To Initiate Investigations.--Section 11701(a) is 
amended by striking ``only on complaint'' and inserting ``on the 
Board's own initiative or on complaint''.
    (b) Rate Proceedings.--Section 10704(b) is amended by striking the 
first sentence and inserting ``The Board may begin a proceeding under 
subsection (a)(1) on its own initiative or upon complaint, except that 
a proceeding to determine the reasonableness of the level of a rate 
charged by a carrier may only be initiated upon complaint.''.
    (c) Annual Report; Investigations.--Section 704 is amended by 
striking ``on its activities.'' and inserting ``on its activities, 
including each instance in which the Board has initiated an 
investigation on its own initiative under this chapter or subtitle 
IV.''.

SEC. 7. PROCEDURES FOR RATE CASES.

    (a) Simplified Procedure.--Section 10701(d)(3) is amended to read 
as follows:
            ``(3) The Board shall maintain a simplified and expedited 
        method for determining the reasonableness of challenged rates 
        in those cases in which a full stand-alone cost presentation is 
        too costly, given the value of the case.''.
    (b) Expedited Handling.--Section 10704(d) is amended by striking 
the first sentence and inserting ``The Board shall maintain procedures 
to ensure expeditious handling of challenges to the reasonableness of 
railroad rates.''.

SEC. 8. RATE REVIEW TIMELINES.

    Section 10704(d), as amended by section 7 of this Act, is further 
amended--
            (1) by striking ``(d) The'' and inserting ``(d)(1) The''; 
        and
            (2) by adding at the end the following:
            ``(2)(A) Except as provided under subparagraph (B), in a 
        stand-alone cost rate challenge, the Board shall comply with 
        the following timeline:
                            ``(i) For discovery, completion not later 
                        than 150 days after the date that the challenge 
                        is initiated.
                            ``(ii) For development of the evidentiary 
                        record, completion not later than 155 days 
                        after the date that discovery is complete under 
                        clause (i).
                            ``(iii) For submission of a closing brief, 
                        submission not later than 60 days after the 
                        date that development of the evidentiary record 
                        is complete under clause (ii).
                            ``(iv) For a final Board decision, issuance 
                        not later than 180 days after the date that the 
                        evidentiary record is complete under clause 
                        (ii).
                    ``(B) The Board may extend a timeline under 
                subparagraph (A) after a request from any party or in 
                the interest of due process.''.

SEC. 9. EFFECT OF RATE BUNDLING.

    Not later than 180 days after the date of enactment of this Act, 
the Surface Transportation Board shall initiate an ex parte proceeding 
on whether contract proposals for multiple origin-to-destination 
movements have adversely impacted the intent of Congress that the 
Surface Transportation Board's rate challenge procedures remain 
available to shippers that are subject to railroad market dominance, 
and how the Board can prevent such practices in the future.

SEC. 10. REPORT ON RATE CASE METHODOLOGY.

    Not later than 1 year after the date of enactment of this Act, the 
Surface Transportation Board shall report to the Committee on Commerce, 
Science, and Transportation of the Senate and the Committee on 
Transportation and Infrastructure of the House of Representatives on--
            (1) whether current large rate case methodologies are 
        sufficient, not unduly complex, and cost effective; and
            (2) alternative methodologies that could streamline and 
        expedite large rate cases.

SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRACTICES, AND COMMON 
              CARRIER SERVICE EXPECTATION DISPUTES.

    (a) In General.--Chapter 117 is amended by adding at the end the 
following:
``Sec. 11708. Voluntary arbitration of certain rail rates, practices, 
              and common carrier service disputes
    ``(a) In General.--Not later than 1 year after the date of 
enactment of the Surface Transportation Board Reauthorization Act of 
2014, the Board shall promulgate regulations to establish a voluntary, 
but binding, arbitration process to resolve rail rate, practice, and 
common carrier service expectation complaints subject to the 
jurisdiction of the Board.
    ``(b) Covered Disputes.--The binding arbitration process--
            ``(1) shall apply to disputes involving rates, demurrage, 
        accessorial charges, misrouting or mishandling of rail cars, 
        and disputes involving a carrier's published rules and 
        practices as applied to particular rail transportation;
            ``(2) shall not apply to--
                    ``(A) disputes to obtain the grant, denial, stay, 
                or revocation of any license, authorization, or 
                exemption, or to prescribe for the future any conduct, 
                rules, or results of general, industry-wide 
                applicability, or to enforce a labor protective 
                condition; and
                    ``(B) disputes solely between 2 or more rail 
                carriers; and
            ``(3) shall not prevent parties from independently seeking 
        or utilizing private arbitration services to resolve any 
        disputes they may have.
    ``(c) Arbitration Procedures.--
            ``(1) In general.--The Board--
                    ``(A) may make the voluntary, but binding, 
                arbitration process available only to the relevant 
                parties--
                            ``(i) after the filing of a formal 
                        complaint;
                            ``(ii) upon petition by all parties at the 
                        conclusion of any informal dispute resolution 
                        process provided by the Board for a complaint 
                        subject to this section; or
                            ``(iii) through current or future 
                        procedures adopted by the Board to facilitate 
                        voluntary, but binding, arbitration;
                    ``(B) with respect to rate disputes, may make the 
                binding arbitration process available only to the 
                relevant parties if the rail carrier has market 
                dominance, as determined under section 10707 of this 
                title; and
                    ``(C) shall determine whether to pursue the binding 
                arbitration process not later than 30 days after the 
                date that a petition or formal complaint is filed.
            ``(2) Limitation.--Initiation of the binding arbitration 
        process shall preclude the Board from separately reviewing a 
        complaint or dispute related to the same rail rate, practice, 
        or common carrier service expectation in a covered dispute 
        involving the same parties.
            ``(3) Rates.--In resolving a covered dispute involving the 
        reasonableness of a rail carrier's rates, the arbitrator or 
        panel of arbitrators, as applicable, shall consider the Board's 
        methodologies for setting maximum lawful rates, giving due 
        consideration to the need for differential pricing to permit a 
        rail carrier to collect adequate revenues within the meaning of 
        section 10704(a)(2).
            ``(4) Service expectations.--In resolving a dispute 
        involving common carrier service expectations, the arbitrator 
        or panel of arbitrators, as applicable, shall consider the 
        rates and service terms, and any changes thereto, as published 
        or otherwise made available under subsection (b), (c), or (d) 
        of section 11101.
    ``(d) Arbitration Decisions.--Any decision reached in an 
arbitration process under this section--
            ``(1) shall--
                    ``(A) be in writing;
                    ``(B) contain findings of fact and conclusions; and
                    ``(C) be binding upon the parties; and
            ``(2) shall not have any precedential effect in any other 
        or subsequent arbitration dispute.
    ``(e) Timelines.--
            ``(1) Selection.--An arbitrator or panel of arbitrators 
        shall be selected not later than 14 days after the date of the 
        Board's decision to initiate arbitration.
            ``(2) Evidentiary process.--The evidentiary process of the 
        binding arbitration process shall be completed not later than 
        90 days after the date that the arbitration process is 
        initiated, unless a party requests an extension and the 
        arbitrator or panel of arbitrators, as applicable, grants it.
            ``(3) Decision.--The arbitrator or panel of arbitrators, as 
        applicable, shall issue a decision not later than 30 days after 
        the date that the evidentiary record is closed.
            ``(4) Extensions.--The Board may extend any of the 
        timelines in this subsection upon the agreement of all parties 
        in the dispute.
    ``(f) Arbitrators.--
            ``(1) In general.--Unless otherwise agreed by all of the 
        parties, an arbitration under this section shall be conducted 
        by a panel of arbitrators, selected from a roster, maintained 
        by the Board, of persons with rail transportation, economic 
        regulation, professional or business experience, including 
        agriculture, in the private sector.
            ``(2) Selection.--
                    ``(A) In general.--If the parties cannot mutually 
                agree on an arbitrator, or the lead arbitrator of a 
                panel of arbitrators, the parties shall select the 
                arbitrator or lead arbitrator from the roster by 
                alternately striking names from the roster until only 1 
                name remains.
                    ``(B) Panel of arbitrators.--For purposes of this 
                section, a panel of arbitrators shall be selected as 
                follows:
                            ``(i) The parties to a dispute may mutually 
                        select 1 arbitrator from the roster to serve as 
                        the lead arbitrator of the panel of 
                        arbitrators.
                            ``(ii) If the parties cannot mutually agree 
                        on a lead arbitrator, the parties shall select 
                        a lead arbitrator using the process described 
                        in subparagraph (A).
                            ``(iii) In addition to the lead arbitrator 
                        selected under this subparagraph, each party to 
                        a dispute shall select 1 additional arbitrator 
                        from the roster.
            ``(3) Cost.--The parties shall share the costs of the 
        arbitration equally.
    ``(g) Relief.--An arbitral decision under this section may award 
the payment of damages or rate prescriptive relief, but the value of 
the award shall be limited as follows:
            ``(1) For common carrier service and practice disputes, the 
        damage award may not exceed $2,000,000.
            ``(2) For rate disputes, the damage award, including any 
        rate prescription, may not exceed $25,000,000, and any rate 
        prescription shall be limited to not longer than 5 years from 
        the date of the arbitral decision.
    ``(h) Board Review.--If a party appeals a decision under this 
section to the Board, the Board may review the decision under this 
section to determine if--
            ``(1) a clear abuse of arbitral authority or discretion 
        occurred;
            ``(2) the decision directly contravenes statutory 
        authority; or
            ``(3) the award limitation under subsection (g) was 
        violated.''.
    (b) Conforming Amendment.--The table of contents for chapter 117 is 
amended by adding at the end the following:

``11708. Voluntary arbitration of certain rail rate, practice, and 
                            common carrier service disputes.''.

SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE TRANSPORTATION BOARD.

    (a) In General.--Section 704, as amended by section 6 of this Act, 
is further amended--
            (1) by striking the section heading and inserting the 
        following:
``Sec. 704. Reports'';
            (2) by inserting ``(a) Annual Report.--'' before ``The 
        Board'' and indenting appropriately; and
            (3) by adding at the end the following:
    ``(b) Complaints.--
            ``(1) In general.--The Board shall establish and maintain a 
        database of complaints received by the Board.
            ``(2) Quarterly reports.--The Board shall post a quarterly 
        report of formal and informal service complaints received by 
        the Board during the previous quarter that includes--
                    ``(A) a list of the type of each complaint;
                    ``(B) the geographic region of each complaint; and
                    ``(C) the resolution of each complaint, if 
                appropriate.
            ``(3) Written consent.--The quarterly report may identify a 
        complainant that submitted an informal complaint only upon the 
        written consent of the complainant.
            ``(4) Website posting.--Each quarterly report shall be 
        posted on the Board's public website.''.
    (b) Conforming Amendment.--The table of contents for chapter 7 is 
amended by striking the item relating to section 704 and inserting the 
following:

``704. Reports.''.

SEC. 13. QUARTERLY REPORTS.

    Not later than 60 days after the date of enactment of this Act, the 
Surface Transportation Board shall begin providing quarterly reports to 
the Committee on Commerce, Science, and Transportation of the Senate 
and the Committee on Transportation and Infrastructure of the House of 
Representatives on the Surface Transportation Board's progress toward 
addressing the issues raised in each unfinished regulatory proceeding, 
regardless of whether the proceeding is subject to a statutory or 
regulatory deadline.

SEC. 14. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) as part of Docket No. EP 722, the Surface 
        Transportation Board should consider the costs and benefits of 
        the annual determinations of revenue adequacy for Class I 
        railroads;
            (2) the Surface Transportation Board should review the 
        methodology employed to define the business cycle in its annual 
        determination of revenue adequacy and consider undertaking, if 
        necessary, a rulemaking to define the business cycle;
            (3) as part of Docket No. EP 711, the Surface 
        Transportation Board should consider if a rulemaking proceeding 
        on competitive switching is needed to promote a viable 
        competitive national rail system; and
            (4) if the Surface Transportation Board determines a 
        rulemaking proceeding on competitive switching is needed, the 
        Surface Transportation Board should ensure that such rulemaking 
        is completed in as timely a manner as possible.

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

    Section 705 is amended by striking paragraphs (1) through (3) and 
inserting the following:
            ``(1) $33,000,000 for fiscal year 2015;
            ``(2) $35,000,000 for fiscal year 2016;
            ``(3) $35,500,000 for fiscal year 2017;
            ``(4) $35,500,000 for fiscal year 2018; and
            ``(5) $36,000,000 for fiscal year 2019.''.

SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS.

    (a) Expired Rail Service Contract Limitation.--Section 10709 is 
amended by striking subsection (h).
    (b) Agent in the District of Columbia.--
            (1) Designation of agent and service of notice.--Section 
        723 is amended--
                    (A) in subsection (a), by striking ``in the 
                District of Columbia,''; and
                    (B) in subsection (c), by striking ``in the 
                District of Columbia''.
            (2) Service of process in court proceedings.--Section 
        724(a) is amended by striking ``in the District of Columbia'' 
        each place it appears.

SEC. 17. CONSTRUCTION.

    Nothing in this Act shall be construed to affect any suit commenced 
by or against the Surface Transportation Board, or any proceeding or 
challenge pending before the Surface Transportation Board, prior to the 
date of enactment of this Act.
                                                       Calendar No. 624

113th CONGRESS

  2d Session

                                S. 2777

_______________________________________________________________________

                                 A BILL

    To establish the Surface Transportation Board as an independent 
                 establishment, and for other purposes.

_______________________________________________________________________

                            December 8, 2014

                       Reported with an amendment
```