Petition for Rulemaking; Railroad Performance Data Reporting, 53375-53380 [2019-21627]

Agencies

• Surface Transportation Board

[Federal Register Volume 84, Number 194 (Monday, October 7, 2019)]
[Proposed Rules]
[Pages 53375-53380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21627]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1250

[Docket No. EP 724 (Sub-No. 5)]


Petition for Rulemaking; Railroad Performance Data Reporting

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (STB or Board) grants in part 
a petition filed by the American Chemistry Council (ACC) to amend the 
Board's railroad performance data reporting regulations. Specifically, 
the Board proposes to modify its regulations to include chemical and 
plastics traffic as a distinct reporting category for the ``cars-held'' 
metric.

DATES: Comments are due by December 6, 2019. Reply comments are due by 
January 6, 2020.

ADDRESSES: Comments and replies may be filed with the Surface 
Transportation Board either via e-filing or in writing addressed to: 
Surface Transportation Board, Attn: Docket No. EP 724 (Sub-No. 5), 395 
E Street SW, Washington, DC 20423-0001. Comments and replies will be 
posted to the Board's website at www.stb.gov.

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

SUPPLEMENTARY INFORMATION: The Board's railroad performance data 
reporting regulations at 49 CFR part 1250, which became effective on 
March 21, 2017, require all Class I carriers and the Chicago 
Transportation Coordination Office (CTCO), through its Class I members, 
to report certain service performance metrics on a weekly, semiannual, 
and occasional basis.
    On December 6, 2018, ACC filed a petition for rulemaking \1\ to 
amend those data reporting regulations to: (1) Include chemical and 
plastics (Standard Transportation Commodity Code (STCC) 28, except 
fertilizer) \2\ traffic as a distinct reporting category for the 
``cars-held'' metric at 49 CFR 1250.2(a)(6); (2) amend 49 CFR 1250.3(a) 
to clarify that yard dwell must be reported for each yard subject to 
average daily car volume reporting; \3\ and (3) extend the same types 
of terminal reporting requirements that are applicable to the Chicago 
gateway (as clarified by comments filed by ACC on May 6, 2019) to the 
New Orleans, East St. Louis, and Memphis gateways (together, the 
Mississippi Gateways). (Pet. 1, 5; ACC Comments 1, 12-13.)
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    \1\ On December 12, 2018, ACC filed an errata to its petition.
    \2\ ACC excludes the fertilizer reporting category of STCC 28 
from its request because fertilizer is already included in the 
Board's data reporting regulations under 49 CFR 1250.2(a)(6). (See 
Pet. 6.)
    \3\ ACC initially sought to extend the weekly average terminal 
dwell time reporting requirement at 49 CFR 1250.2(a)(2) to include 
all Class I, terminal, and switching carriers at the Chicago 
gateway. However, as described below, in its comments filed on May 
6, 2019, ACC withdraws this part of its initial request and instead 
seeks the amendment described here.
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    On January 28, 2019, the Association of American Railroads (AAR) 
filed a reply in opposition to ACC's petition. By decision served on 
April 5, 2019 (April Decision), the Board opened a rulemaking 
proceeding and directed ACC and AAR to provide additional information 
regarding ACC's proposed amendments to the regulations. Pursuant to 
that decision, ACC and AAR each filed comments on May 6, 2019, and AAR 
filed reply comments on May 20, 2019.
    After considering the petition for rulemaking and the comments 
received, the Board will grant ACC's petition in

[[Page 53376]]

part and propose to include chemical and plastics (STCC 28, except 
fertilizer) \4\ traffic as a distinct reporting category for the cars-
held metric at 49 CFR 1250.2(a)(6). The Board will deny ACC's petition 
with regard to its other requested amendments.
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    \4\ STCC 28 is designated for ``chemicals or allied products'' 
and referred to generally by ACC as ``chemical and plastics''.
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Background

    In 2014, the Board initiated a rulemaking proceeding to establish 
new regulations requiring all Class I railroads and the CTCO, through 
its Class I members, to report certain service performance metrics on a 
weekly basis. See U.S. Rail Serv. Issues--Performance Data Reporting 
(2014 NPRM), 80 FR 473 (Jan. 6, 2015), EP 724 (Sub-No. 4) (STB served 
Dec. 30, 2014).\5\ The primary purpose of that rulemaking proceeding 
was to develop a set of performance data that would allow the agency to 
monitor current service conditions in the industry and improve the 
Board's ability to identify and help resolve future regional or 
national service disruptions more quickly, should they occur. Id. at 3. 
The Board adopted its final rule on November 30, 2016, U.S. Rail 
Service Issues--Performance Data Reporting (Final Rule), 81 FR 87472 
(Dec. 5, 2016), EP 724 (Sub-No. 4) (STB served Nov. 30, 2016), and the 
rule became effective on March 21, 2017 (82 FR 9529 (Feb. 7, 2017)).\6\
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    \5\ For a background of the service problems that led to the 
Board initiating the 2014 proceeding, see 2014 NPRM, EP 724 (Sub-No. 
4), slip op. at 2-3.
    \6\ By decision served on March 13, 2017, the Board issued a 
technical correction to the final rule to include an additional 
fertilizer STCC in addition to the 14 fertilizer STCCs initially 
included. U.S. Rail Serv. Issues--Performance Data Reporting, 82 FR 
13401 (March 13, 2017), EP 724 (Sub-No. 4) (STB served Mar. 13, 
2017).
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    In its petition, ACC argues that its requested changes ``are 
desirable to give the Board and shippers consistent service metrics 
across railroads that provide adequate visibility into critical aspects 
of the national rail system.'' (Pet. 1.) ACC states that STCC 28 
traffic accounts for the highest number of manifest carloads, compared 
to all other two-digit STCC groups, and plays a key role in the 
national economy. (Id.) ACC also states that STCC 28 traffic is vital 
to many essential goods and services for consumers and a variety of 
industries, such as chlorine and other treatment chemicals for the 
purification of public water supplies, plastics and polymers for use in 
the manufacturing of automobiles, and various plastics and chemicals 
for use in the manufacturing of pharmaceuticals and medical devices. 
(Id. at 6-7.) According to ACC, STCC 28 traffic is especially 
vulnerable to rail service problems because it cannot readily shift to 
alternative rail carriers or to other modes. (Id. at 7.)
    ACC maintains that requiring accurate and consistent reporting of 
STCC 28 service metrics across rail carriers would enable early 
identification of service issues and a better opportunity to mitigate 
them. (Id.) ACC also states that STCC 28 traffic is an important 
bellwether of service issues, because it moves long distances and is a 
leader in traffic volume, second only to coal in total carloads, which 
means that service issues have a deeper impact on STCC 28 commodities 
than most other commodity groups. (Id. at 9.) Further, ACC states that 
STCC 28 traffic is more likely to signal congestion at terminals than 
many other existing categories for the cars-held metric, because it 
moves almost exclusively in manifest service that must be switched 
individually or in small blocks at terminals (whereas the existing 
categories mostly represent unit train traffic, which requires little 
or no switching at terminals). (Id. at 10.)
    Additionally, ACC states that extending the same types of Chicago 
reporting requirements, including dwell time, to the Mississippi 
Gateways is important because the problems of one carrier at these 
points can have a cascading effect on other carriers in the national 
network. (Id. at 11.) ACC states that information about service at the 
Mississippi Gateways is especially important for STCC 28 traffic 
because a high proportion of this traffic originates in the west and 
interchanges at the Mississippi Gateways to reach destinations in the 
east. (Id. at 12.)
    In its reply to ACC's petition, AAR argues that the Board should 
not adopt additional commodity-specific reporting, (AAR Reply 2-4, Jan. 
28, 2019), and that joint Mississippi Gateways information is 
unnecessary and would be unduly burdensome (id. at 5-6). AAR argues 
that a narrow focus on subsets of rail traffic can remove important 
context from the full picture of a globalized supply chain, that 
commodity-specific reporting is particularly susceptible to such 
distortion, and that granular reports are therefore of limited benefit. 
(Id. at 2-4.) AAR further argues that continuous changes to the Board's 
reporting rules would impose ongoing costs to railroads that would need 
to make programming changes to their systems to comply, and that ACC 
had the opportunity to advocate for chemical-specific reporting during 
the initial formulation of the reporting rules but did not make such a 
proposal. (Id. at 3.) Additionally, with respect to the Mississippi 
Gateways reporting, AAR states that, because the Mississippi Gateways 
do not have the equivalent of the CTCO,\7\ any joint service report 
would need to be built from the ground up from data from individual 
carriers. AAR states that this would be burdensome to undertake, and 
that the burden is not justified. (Id. at 5-6.)
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    \7\ AAR states that the CTCO currently reports weekly average 
terminal dwell in hours for 11 individual Chicago yards and an 
average of the group. (AAR Reply 4, Jan. 28, 2019.) AAR further 
states that the CTCO reports encompass the six Class I railroads and 
both terminal and switching railroads that operate in Chicago. (Id.)
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    In the April Decision, 84 FR 14907 (April 12, 2019), EP 724 (Sub-
No. 5), slip op. at 2, the Board opened a rulemaking proceeding and 
directed ACC and AAR to provide additional information. Specifically, 
the Board directed ACC to elaborate on shippers' experiences using 
performance data reported under the existing rules to inform their 
business and supply chain decision-making. Id. The Board directed ACC 
to explain how the additional data requested would materially enhance 
that decision-making with reference to specific scenarios or real-world 
circumstances, and, if possible, that ACC quantify the value of 
additional reporting. Id. The Board also directed ACC to provide 
additional data supporting its selection of the Mississippi Gateways 
relative to other terminal locations, both in terms of their 
significance to the overall rail network and specifically to chemical 
traffic shipments. Id. Additionally, the Board directed ACC to explain 
in greater detail why the existing performance data reported pursuant 
to Sec.  1250.2(a)(2) are insufficient indicators as to rail 
performance across the network, including at the Mississippi Gateways. 
April Decision, EP 724 (Sub-No. 5), slip op. at 2.
    The Board directed AAR to explain in greater detail the 
``programming changes'' railroads would need to make to comply with the 
proposed reporting requirements; the ``other costs'' that would be 
associated with complying with the proposed reporting requirements; and 
the specific process individual carriers would need to undertake to 
build ``from the ground up data'' to compile a joint service report at 
each proposed Mississippi Gateway location. Id. The Board also directed 
AAR to provide data that further describes or quantifies the ``ongoing 
costs'' and ``burden'' of the proposed changes. Id.
    In response to the April Decision, ACC and AAR each filed 
subsequent

[[Page 53377]]

comments, and AAR filed a reply.\8\ ACC argues that existing 
performance data reporting has played a crucial role in helping ACC's 
membership address rail service issues. (ACC Comments 2.) ACC provides 
several specific examples of how the existing data reporting has helped 
its members. Among those examples, ACC explains how one member used a 
carrier's specific data to elevate the member's concerns and establish 
regular communication with the carrier to address service issues, as 
well as an example of how a member used such data to make operational 
and business planning decisions. (Id. at 2-5.) ACC states that, with 
the additional reporting metrics it proposes, chemical shippers would 
be better prepared to identify rail service issues, address them with 
railroads, make internal operational adjustments, and manage their 
railcar fleet. (Id. 5-6.) According to ACC, railroads are generally 
reluctant to collaborate on service issues unless the shipper is able 
to provide data identifying the issue and possible solutions. (Id. at 
9.) ACC asserts that the additional reporting would enable shippers to 
engage with railroads to identify alternative routings involving the 
Mississippi Gateways or address network issues impacting STCC 28 
traffic. (Id.) ACC states that the additional reporting would also 
enhance shippers' ability to internally manage service issues and may 
lead to substantial cost savings. (Id.) ACC provides specific examples 
of how its members would benefit from the additional data reporting. 
(Id. at 9-11.)
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    \8\ As noted earlier, in its comments ACC withdraws its second 
request to extend the reporting at 49 CFR 1250.2(a)(2) to the 
Chicago gateway, and instead seeks revisions to the Chicago terminal 
reporting requirements to clarify that yard dwell must be reported 
for each yard subject to average daily car volume reporting. See 
supra note 3.
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    In its May 6 comments, as described further below, AAR provides 
information on the formation and development of the CTCO and programs, 
efforts, and systems to collect and report performance data on the 
Chicago terminal. (AAR Comments 2-6, May 6, 2019.) AAR also provides 
quantitative estimates of the costs associated with each of ACC's 
requested reporting requirement changes. (Id. at 7-10.) In its reply, 
AAR argues that ACC has failed to demonstrate that the additional 
reporting would have public benefits tied to the Board's regulatory 
authority that would justify the expense and burden that reporting 
would place on carriers. (AAR Reply 2, May 20, 2019.) Additionally, 
according to AAR, ACC's filings illustrate continued misconceptions 
regarding the utility of railroad performance metrics. (Id. at 4.) AAR 
also argues that the utility of railroad service data is limited to 
identifying changes and trends on a particular railroad, and that the 
data cannot reliably be used to understand causality, compare rail 
performance across different commodities or time periods, or compare 
railroads. (Id. at 4-5.)

Discussion of ACC's Requests

    ACC Request #1: Include chemical and plastics (STCC 28) traffic as 
a distinct reporting category for the cars-held metric at 49 CFR 
1250.2(a)(6). According to ACC, separately reporting cars-held data for 
STCC 28 traffic would enable shippers to identify regional issues 
affecting that traffic. (ACC Comments 6.) ACC argues that the cars-held 
metric is an important indicator of rail system fluidity, and that for 
STCC 28 traffic, a fluid rail system is especially important in the 
Gulf Coast, where a substantial portion of this traffic is 
concentrated. (Id.) ACC asserts that the current data reporting masks 
the severity of service events having a disproportionate impact on STCC 
28 traffic, and ACC provides charts that it asserts show an example of 
this dynamic. (Id. at 6-7.) ACC reiterates that additional reporting 
will enhance shippers' ability to internally manage service issues and 
may lead to substantial cost savings. (Id. at 9).
    AAR responds that additional reporting of STCC 28 traffic as a line 
item in the ``cars-held for more than 48 hours'' report would 
necessitate each Class I carrier to alter the coding necessary to pull 
the data prescribed by the Board. (AAR Comments 9-10.) According to 
AAR, the cost associated with this request would total approximately 
$34,000 for all seven Class I railroads, as it would require three to 
four employees totaling roughly 80 hours to update existing computer 
coding, write new code to modify the search parameters, test new code 
against existing systems to make sure it does not cause problems, and 
have the new code approved. (Id. at 10.) AAR again objects to 
``continuous changes to the Board's reporting rules,'' as such changes 
``impose ongoing costs to railroads that would need to make programming 
changes to their systems to enable compliance.'' (Id. at 9 (quoting AAR 
Reply 3, Jan. 28, 2019).) AAR again notes that ACC had the opportunity 
to make this request in the past and failed to do so. (AAR Comments 9.)
    After considering ACC's petition and the responsive comments filed, 
the Board concludes that including STCC 28 traffic as a distinct 
reporting category for the cars-held metric at 49 CFR 1250.2(a)(6) 
would be reasonable, warranted, and consistent with the rail 
transportation policy (RTP) of 49 U.S.C. 10101. As explained in the 
Final Rule in EP 724 (Sub-No. 4), service adequacy is a key part of the 
Board's mandate under the Interstate Commerce Act. Final Rule, EP 724 
(Sub-No. 4), slip op. at 5. Pursuant to the RTP, in regulating the 
railroad industry, it is the policy of the United States Government to 
minimize the need for regulatory control, 49 U.S.C. 10101(2), promote a 
safe and efficient rail transportation system, 49 U.S.C. 10101(3), 
ensure the development of a sound rail transportation system to meet 
the needs of the public, 49 U.S.C. 10101(4), and encourage efficient 
management of railroads, 49 U.S.C. 10101(9). ACC's requested amendment 
to 49 CFR 1250.2(a)(6) would advance these RTP goals.\9\ The additional 
data reporting on chemical and plastics traffic would promote the RTP 
by allowing the agency, as well as shippers and other stakeholders, to 
more quickly identify and respond to service issues related to these 
important commodities. ACC has demonstrated both the critical 
importance of this particular traffic as well as the benefits to 
specifically identifying this traffic in the cars-held metric.\10\ 
Reporting of chemicals and plastics as a stand-alone category of cars 
holding for 48 hours or longer would, in addition to allowing the Board 
and shippers to monitor the fluidity of these commodities vital to 
essential goods and services, have the potential to help shippers 
address such issues privately with railroads, make operational 
adjustments, and improve their business planning, including though the 
management of their rail car fleets. These private solutions, without 
further involvement by the Board, could reduce the need for litigation 
and could lower overall costs of the provision of these commodities. In 
light of these significant public benefits, AAR has not shown in its 
comments to date that the modest one-time coding cost it describes

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would be unduly burdensome to the reporting railroads.
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    \9\ Further, as discussed in the Final Rule, the Board has the 
responsibility for monitoring the adequacy of service under specific 
statutory provisions, including service emergencies under 49 U.S.C. 
11123. Moreover, service issues can also be relevant when the Board 
considers whether railroad service practices are reasonable, 49 
U.S.C. 10702, whether to force a line sale in the event of 
inadequate service, 49 U.S.C. 10907, and whether railroads are 
fulfilling their common carrier obligations, 49 U.S.C. 11101, or 
providing safe and adequate car service 49 U.S.C. 11121. Final Rule, 
EP 724 (Sub-No. 4), slip op. at 5.
    \10\ AAR concedes that ``granular reports'' provide at least a 
certain ``limited benefit.'' (AAR Reply 4, Jan. 28, 2019.)
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    ACC Request #2: Amend 49 CFR 1250.3(a) to clarify that yard dwell 
must be reported for each yard subject to average daily car volume 
reporting. In lieu of its initial request, ACC instead seeks amendments 
to the Chicago terminal reporting requirements that ACC states would 
clarify that yard dwell must be reported for each yard subject to 
average daily car volume reporting. (ACC Comments 1.) ACC claims that, 
while reviewing the Chicago reporting, ACC discovered a disconnect 
between the current reporting practice and the Chicago terminal 
reporting rule. (Id. at 12.) ACC states that AAR has been reporting the 
seven-day average yard dwell for the Chicago terminal yards that are 
subject to average daily car volume reporting under 49 CFR 1250.3(a). 
(Id.) According to ACC, the Board appears to have required this 
reporting in its decision that issued the Chicago terminal reporting 
requirements, but the Board did not include the requirement in the 
rule's text. (Id., citing Final Rule, EP 724 (Sub-No. 4), slip op. at 
22-23.) ACC requests that the Board make clarifying edits to 49 CFR 
1250.3(a) to capture the full scope of required reporting. (Id. at 12-
13.)
    AAR asserts that the ``disconnect'' noted by ACC is merely the text 
of the Board's decision that accepted AAR's offer to voluntarily report 
the metrics that were already being shared with Chicago stakeholders. 
(AAR Reply 5-6, May 20, 2019.) AAR argues that the Board should not 
codify that voluntary report; instead, the Board should allow the 
railroads and Chicago stakeholders the flexibility to change reports as 
business and technology changes warrant, without having to come back to 
the Board and petition it to begin a rulemaking proceeding. (Id. at 6.)
    The Board does not agree with ACC's claim of a disconnect between 
the Board's decision and the rule as codified, which is the sole basis 
for ACC's request to amend 49 CFR 1250.3(a). The Board explicitly 
stated in the Final Rule that it would ``accept the AAR's voluntary 
offer to include the data it is reporting to [the Chicago Metropolitan 
Agency for Planning] in CTCO's report to the Board.'' Final Rule, EP 
724 (Sub-No. 4), slip op. at 23 (emphasis added). The Board further 
stated that, ``[t]he final rule, as augmented by the data that AAR has 
offered to submit voluntarily, will continue to maintain a robust view 
of operating conditions in the Chicago gateway.'' Id. (emphasis added). 
Accordingly, there is no confusion regarding the scope of required 
reporting for Chicago. Therefore, the Board will deny ACC's request to 
amend 49 CFR 1250.3(a).
    ACC Request #3: Extend the terminal reporting requirements 
applicable to the Chicago gateway to the Mississippi Gateways. ACC 
states that it requests additional data reporting for the Mississippi 
Gateways because a substantial amount of its members' traffic move 
through these gateways. According to ACC, ``multiple large ACC members 
indicated that approximately 25% of their traffic moves through the 
Mississippi Gateways.'' (ACC Comments 11.) However, ACC states that it 
is unable to provide additional data regarding the Mississippi Gateways 
because the Public Use Waybill Sample does not identify specific 
interchange locations. (Id.) ACC states that, for additional data 
regarding the volume of STCC 28 traffic moving through the Mississippi 
Gateways, the Board could review the Confidential Carload Waybill 
Sample (CCWS), which would enable the Board to calculate the volume of 
STCC 28 traffic moving through the Mississippi Gateways as well as 
other gateway locations. (Id.) ACC states that it would support the 
inclusion of additional gateways that the Board determines are 
significant to the overall rail network. (Id.)
    According to ACC, the Mississippi Gateways are complex terminals 
with many interchange yards and multiple carriers, and congestion may 
impact some, but not all, of the yards and carriers serving a gateway. 
(Id. at 7-8.) Therefore, ACC requests that the proposed Mississippi 
Gateway reporting provide the terminal- and yard-level data necessary 
for chemical shippers to pinpoint service issues in these gateways. 
(Id. at 8.) ACC indicates that this information could be used to 
anticipate bunching and other delays. (Id.) ACC states that this 
information would allow members to know whether a Mississippi Gateway 
issue is attributable to a carrier or a specific gateway yard and to 
plan accordingly. (Id. at 10.)
    ACC also argues that the additional data reporting would enable 
shippers to more accurately predict their transit times and, thus, more 
efficiently manage their own private railcar fleets. (Id.) For example, 
according to ACC, the data would enable a member to identify the source 
of gateway dwells and reduce its fleet accordingly, and potentially 
help an ACC member advocate for shifting traffic from one gateway to 
another. (Id. at 10-11.)
    AAR maintains that ACC has not justified its request for joint 
reporting of metrics from the Mississippi Gateways. (AAR Reply 3, May 
20, 2019.) As noted above, in its May 6, 2019 comments, AAR describes 
the circumstances that gave rise to the formation of the CTCO and the 
development of programs, efforts, and systems to address the complexity 
of Chicago operations, as well as the significant estimated costs of 
replicating them in the Mississippi Gateways. (AAR Comments 2-9.) AAR 
estimates that the cost to the Class I carriers of reproducing the 
joint yard inventory, yard dwell, and trains held reports for the 
Mississippi Gateways would total approximately $1.6 million in initial 
development, and approximately $330,000 in annual maintenance expenses. 
(Id. at 6-7.) AAR argues that the Mississippi Gateways do not approach 
the complexity associated with Chicago operations, nor are any of the 
Mississippi Gateways as central to the national rail network. (AAR 
Reply 3, May 20, 2019.) AAR also states that, while ACC's members 
report that approximately 25% of their individual traffic moves through 
the Mississippi Gateways, ACC does not attempt to prove that this 
sampling is representative of chemical traffic generally. (Id.) In 
response to ACC's suggestion that the Board review the CCWS, AAR 
cautions that the CCWS contains information on commercial interchanges, 
not necessarily the operational interchanges reflecting where traffic 
actually moved, so the CCWS can give the Board only a rough 
understanding of the volume of interchange traffic at each Mississippi 
Gateway. (Id. at 3-4.)
    The Board finds that ACC's petition and comments do not provide 
adequate justification to extend the terminal reporting requirements 
applicable to Chicago to the Mississippi Gateways at this time. The 
Board has focused on reporting at Chicago due to Chicago's unique 
importance to the overall fluidity of the national rail network. See, 
e.g., 2014 NPRM, EP 724 (Sub-No. 4), slip op. at 6 (reiterating ``the 
longstanding importance of Chicago as a hub in national rail operations 
and the impact that recent extreme congestion in Chicago has had on 
rail service in the Upper Midwest and nationwide''). ACC has not 
demonstrated, nor does analysis of the waybill support,\11\ that the 
Mississippi Gateways have a similar level of importance across 
commodities and the rail network. Furthermore, ACC

[[Page 53379]]

has not sufficiently explained why the data already collected from each 
Class I carrier's 10 largest terminals is inadequate to identify 
problems with fluidity of STCC 28 traffic across the national network, 
especially if the existing data reporting requirements for the largest 
terminals are enhanced by the Board's proposal to require separate 
reporting of cars held for chemical and plastics traffic. Given the 
costs asserted by AAR of providing such information, ACC has not 
provided sufficient data to demonstrate the benefits of a separate 
reporting mechanism at the Mississippi Gateways. Based on the 
foregoing, the Board concludes that the requested reporting is not 
warranted at this time and therefore will deny this request.
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    \11\ The Office of Economics reviewed the confidential Waybill 
Sample data for 2017 and determined that 831,606 cars were 
interchanged in Chicago, while only 410,320 cars were interchanged 
in the Mississippi Gateways combined.
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Proposed Rule

    For the reasons discussed above, and as set forth below, the Board 
proposes to include chemical and plastics (STCC 28, except fertilizer) 
traffic as a distinct reporting category for the ``cars-held'' metric 
at 49 CFR 1250.2(a)(6). Interested persons may comment on the proposed 
rule by December 6, 2019; replies are due by January 6, 2020.

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). Because the 
goal of the RFA is to reduce the cost to small entities of complying 
with federal regulations, the RFA requires an agency to perform a 
regulatory flexibility analysis of small entity impacts only when a 
rule directly regulates those entities. In other words, the impact must 
be a direct impact on small entities ``whose conduct is circumscribed 
or mandated'' by the proposed rule. White Eagle Coop v. Conner, 553 
F.3d 467, 480 (7th Cir. 2009).
    The Board's proposed change to its regulations here is intended to 
improve the quality of the service data reported by Class I carriers 
and does not mandate or circumscribe the conduct of small entities. For 
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 Regulatory 
Flexibility Act, 81 FR 42566 (June 30, 2016), EP 719 (STB served June 
30, 2016) (with Board Member Begeman dissenting).\12\ The change 
proposed here is limited to Class I carriers. Therefore, the Board 
certifies under 5 U.S.C. 605(b) that the proposed rule, if promulgated, 
would not have a significant economic impact on a substantial number of 
small entities within the meaning of the RFA. This decision will be 
served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. 
Small Business Administration, Washington, DC 20416.
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    \12\ Class III carriers have annual operating revenues of $20 
million or less in 1991 dollars or $39,194,876 or less when adjusted 
for inflation using 2018 data. Class II carriers have annual 
operating revenues of less than $250 million or $489,935,956 when 
adjusted for inflation using 2018 data. 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., 84 FR 27829 (June 
14, 2019), EP 748 (STB served June 14, 2019).
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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, the Board seeks comments about the impact 
of the amendments in the proposed rules to the currently approved 
collection of the United States Rail Service Issues-Performance Data 
Reporting (OMB Control No. 2140-0033) regarding: (1) Whether the 
collection of information, as modified in the proposed rule and further 
described below, is necessary for the proper performance of the 
functions of the 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 Board 
estimates that the new requirement to include chemical and plastics 
(STCC 28) traffic as a distinct reporting category would add a one-time 
hour burden of 15 hours (or 45 hours amortized over three years) per 
railroad because the railroads will need to update their existing 
reporting software programs to implement this change.\13\ In addition 
to the burden of the one-time programming change, the Board estimates 
that the annual hour burden of this collection has decreased over the 
last two-plus years to approximately half of its original estimate, due 
to efficiencies of routine and improvements in technology. The Board 
welcomes comment on the estimates of actual time and costs of 
collection of the United States Rail Service Issues-Performance Data 
Reporting, as detailed below in Appendix. 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.
---------------------------------------------------------------------------

    \13\ In making this estimate, the Board has taken into account 
the information provided by AAR. (See AAR Comments 10.)
---------------------------------------------------------------------------

List of Subjects in 49 CFR Part 1250

    Administrative practice and procedure, Railroads, Reporting and 
recordkeeping requirements.

    It is ordered:
    1. ACC's petition for rulemaking is granted in part and denied in 
part, as discussed above.
    2. The Board proposes to amend its rules as set forth in this 
decision. Notice of the proposed rules will be published in the Federal 
Register.
    3. Comments regarding the proposed rule are due by December 6, 
2019. Replies are due by January 6, 2020.
    4. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration, 
Washington, DC 20416.
    5. This decision is effective on the day of service.

    Decided: September 30, 2019.

    By the Board, Board Members Begeman, Fuchs, and Oberman.
Kenyatta Clay,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend part 1250 of title 49, chapter 
X, of the Code of Federal Regulations as follows:

PART 1250--RAILROAD PERFORMANCE DATA REPORTING

0
1. The authority citation for part 1250 continues to read as follows:

    Authority:  49 U.S.C. 1321 and 11145.

0
2. Amend Sec.  1250.2 by revising paragraph (a)(6) to read as follows:

[[Page 53380]]

Sec.  1250.2   Railroad performance data elements.

    (a) * * *
    (6) The weekly average of loaded and empty cars, operating in 
normal movement and billed to an origin or destination, which have not 
moved in 48 hours or more, sorted by service type (intermodal, grain, 
coal, crude oil, automotive, ethanol, fertilizer (the following 
Standard Transportation Commodity Codes (STCCs): 2812534, 2818142, 
2818146, 2818170, 2818426, 2819173, 2819454, 2819815, 2871235, 2871236, 
2871238, 2871244, 2871313, 2871315, and 2871451), chemicals or allied 
products (all remaining STCC 28), and all other).
* * * * *

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix

Information Collection

    Title: United States Rail Service Issues--Performance Data 
Reporting.
    OMB Control Number: 2140-0033.
    Form Number: None.
    Type of Review: Revision of a currently approved 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, the Surface Transportation Board (Board) gives 
notice that it is requesting from the Office of Management and 
Budget (OMB) approval for the revision of the currently approved 
information collection, United States Rail Service Issues-
Performance Data Reporting, OMB Control No. 2140-0033. The requested 
revision to the currently approved collection is necessitated by 
this notice of proposed rulemaking (NPRM), which would require 
respondents to include chemical and plastics (STCC 28) traffic as a 
distinct reporting category for cars-held metric at 49 CFR 
1250.2(a)(6). All other information collected by the Board in the 
currently approved collection is without change from its approval 
(currently expiring on June 30, 2020).
    Respondents: Class I railroads (on behalf of themselves and the 
Chicago Transportation Coordination Office (``CTCO'')).
    Number of Respondents: Seven.
    Estimated Time per Response: The proposed rules seek three 
related responses, as indicated in the table below.

                   Table--Estimated Time per Response
------------------------------------------------------------------------
                                                          Estimated time
                    Type of responses                      per response
                                                              (hours)
------------------------------------------------------------------------
Weekly..................................................             1.5
Quarterly...............................................             1.5
On occasion.............................................             1.5
------------------------------------------------------------------------

    Frequency: The frequencies of the three related collections 
sought under the proposed rules are set forth in the table below.

                      Table--Frequency of Responses
------------------------------------------------------------------------
                                                           Frequency of
                    Type of responses                        responses
                                                              (year)
------------------------------------------------------------------------
Weekly..................................................              52
Quarterly...............................................               4
On occasion.............................................               2
------------------------------------------------------------------------

    Total Burden Hours (annually including all respondents): The 
recurring burden hours are estimated to be no more than 591 hours 
per year, as derived in the table below. In addition, there are some 
one-time, start-up costs of approximately 45 hours for each 
respondent that must be added as a one-time burden due to the 
programming changes to add the additional reporting category. To 
avoid inflating the estimated total annual hourly burden, the 45-
hour start-up burden has been divided by three and spread over the 
three-year approval period. Thus, the total annual burden hours for 
each of the three years are estimated at no more than 696 hours per 
year.

                                                                Table--Total Burden Hours
                                                                       [per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Frequency of
              Type of responses                   Number of                   Estimated time per response                    responses     Total yearly
                                                 respondents                                                                  (year)       burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Weekly.......................................               7  1.5 hours................................................              52             546
Quarterly....................................               7  1.5 hours................................................               4              42
On occasion..................................               1  1.5 hours................................................               2               3
One-Time.....................................               7  15 hours (45 hours/3 years)..............................               1             105
                                              ----------------------------------------------------------------------------------------------------------
    Total....................................  ..............  .........................................................  ..............             696
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Total ``Non-hour Burden'' Cost: There are no other costs 
identified because filings are submitted electronically to the 
Board.
    Needs and Uses: The information collection allows the Board to 
better understand current service issues and potentially to identify 
and resolve possible future regional and national service 
disruptions more quickly. Transparency would also benefit rail 
shippers and stakeholders, by allowing them to better plan 
operations and make informed business decisions based on publicly 
available data, and their own analysis of performance trends over 
time. As described in more detail above in the NPRM, the Board is 
amending the rules that apply to this collection to add chemical and 
plastics (STCC 28, except fertilizer) traffic as a distinct 
reporting category. The reporting of this traffic as a stand-along 
category of cars will allow the Board to monitor the fluidity of 
these commodities and give chemical and plastics shippers the 
ability to identify and mitigate service issues more readily. The 
collection by the Board of this information, and the agency's use of 
this information, enables the Board to meet its statutory duties.

[FR Doc. 2019-21627 Filed 10-4-19; 8:45 am]
 BILLING CODE 4915-01-P