Joint Petition for Rulemaking To Establish a Voluntary Arbitration Program for Small Rate Disputes, 700-738 [2022-27924]

Agencies

• Surface Transportation Board

[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Rules and Regulations]
[Pages 700-738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27924]



[[Page 699]]

Vol. 88

Wednesday,

No. 2

January 4, 2023

Part IV





Surface Transportation Board





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49 CFR Parts 1011, 1108, 1115, et al.





Joint Petition for Rulemaking To Establish a Voluntary Arbitration 
Program for Small Rate Disputes; Final Rule

Federal Register / Vol. 88 , No. 2 / Wednesday, January 4, 2023 / 
Rules and Regulations

[[Page 700]]


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SURFACE TRANSPORTATION BOARD

49 CFR Parts 1011, 1108, 1115, and 1244

[Docket No. EP 765]


Joint Petition for Rulemaking To Establish a Voluntary 
Arbitration Program for Small Rate Disputes

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (STB or Board) adopts a final 
rule modifying its regulations to establish a voluntary arbitration 
program for small rate disputes.

DATES: This rule is effective February 3, 2023.

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 issued a notice of proposed 
rulemaking on November 15, 2021, published in the Federal Register on 
November 26, 2021 (86 FR 67588), to modify its regulations to establish 
a voluntary arbitration program for small rate disputes. Joint Pet. for 
Rulemaking to Establish a Voluntary Arbitration Program for Small Rate 
Disputes (Arbitration NPRM), EP 765 (STB served Nov. 15, 2021). Under 
this new arbitration program, Class I rail carriers would voluntarily 
agree to arbitrate small rate disputes up to $4 million over a two-year 
relief period. As proposed, the Class I carriers that agreed to 
participate in this new arbitration program would do so for a five-year 
term, subject only to a right to withdraw from the program if there is 
a material change in the law, while complainants would participate on a 
case-by-case basis.\1\ The Board's proposed voluntary arbitration 
program also included several other features intended to incentivize 
railroad and shipper participation, and to ensure that the program is 
fair and balanced. The new arbitration process would function alongside 
the existing arbitration program at 49 CFR part 1108.
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    \1\ In Arbitration NPRM, the Board generally referred to 
``shippers'' when discussing parties that would initiate 
arbitration. However, the Board noted that parties other than 
shippers have standing to bring rate challenges. See Arbitration 
NPRM, EP 765, slip op. 9 n.16 (citing Publ'n Requirements for Agri. 
Prods., EP 526 et al., slip op. at 7-8 (STB served Dec. 29, 2016). 
Although the Board used the term ``shipper/complainant'' in the 
proposed regulations, the Board has changed references to ``shipper/
complainant'' to ``complainant'' in the final rule.
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    In a related proceeding, the Board issued a supplemental notice of 
proposed rulemaking proposing a new rate case procedure for smaller 
cases called Final Offer Rate Review (FORR), Final Offer Rate Rev. 
(FORR SNPRM), EP 755 (STB served Nov. 15, 2021), which was also 
published in the Federal Register on November 26, 2021 (86 FR 67622). 
As part of Arbitration NPRM, the Board proposed that carriers that 
participate in the new small rate case arbitration program would be 
exempt from rate challenges under the process being proposed in FORR 
SNPRM. The Board issued the decisions concurrently so that it could 
consider the pros and cons of such an exemption and allow stakeholders 
to fully compare the arbitration and FORR proposals.
    For the reasons discussed below, the Board adopts a final rule 
establishing a new arbitration program for resolution of small rate 
disputes. Under certain circumstances, participating carriers will be 
exempted from challenges under the FORR process, which are also being 
adopted today in a separate decision.

Background

    The Board has had a voluntary arbitration process available to 
parties to resolve disputes since 1997. See Arb. of Certain Disputes 
Subject to the Statutory Jurisdiction of the STB, 2 S.T.B. 564 (1997). 
Originally, parties wishing to use this process needed to agree to 
arbitrate disputes on a case-by-case basis. See id. However, in 2013, 
the Board modified the arbitration procedures in Assessment of 
Mediation & Arbitration Procedures, EP 699 (STB served May 13, 2013) 
(revising and consolidating the Board's arbitration procedures). Among 
other things, the Board modified its regulations to establish a program 
through which a party could voluntarily agree in advance to arbitrate 
particular types of disputes within clearly defined liability limits. 
However, rate disputes were not included in this program. Id. at 4, 7-
9.\2\
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    \2\ Although rate disputes were not included on the list of 
matters parties could agree to arbitrate in advance, the revised 
regulations did permit parties to agree to arbitrate additional 
matters on a case-by-case basis, provided that the matters were 
within the Board's statutory jurisdiction to resolve and that the 
dispute did not require the Board to grant, deny, stay, or revoke a 
license or other regulatory approval or exemption, and did not 
involve labor protective conditions. See Assessment of Mediation & 
Arb. Procs., EP 699, slip op. at 8-9.
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    In section 13 of the Surface Transportation Board Reauthorization 
Act of 2015 (STB Reauthorization Act), Public Law 114-110 Sec.  13, 129 
Stat. 2228, 2235-38, codified at 49 U.S.C. 11708, Congress required the 
Board to promulgate new regulations establishing a voluntary and 
binding arbitration process, including adding disputes involving rates 
to the list of arbitration-eligible matters. To fulfill the 
requirements of section 13, the Board adopted changes to its 
arbitration process in Revisions to Arbitration Procedures (Revisions 
Final Rule), EP 730 (STB served Sept. 30, 2016), including adding rate 
disputes as an arbitration-eligible matter. Three Class I carriers have 
opted into the Board's arbitration program for certain types of 
disputes (though not rate disputes).\3\ However, to date, no parties 
have opted to utilize the Board's arbitration process.
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    \3\ See Union Pacific Railroad Company (UP) Notice (June 21, 
2013), CSX Transportation, Inc. (CSXT) Notice (June 28, 2019), and 
Canadian National Railway Company (CN) Notice (July 1, 2019), 
Assessment of Mediation & Arb. Procs., EP 699.
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    In January 2018, the Board established the Rate Reform Task Force 
(RRTF), with the objective of, among other things, determining how best 
to provide a rate review process for small cases. After holding 
informal meetings throughout 2018, the RRTF issued a report on April 
25, 2019 (RRTF Report). With respect to small rate disputes, the RRTF 
recommended, among other things: (1) legislation by Congress to permit 
mandatory arbitration of small rate disputes and (2) establishment by 
the Board of a new rate reasonableness decision-making process under 
which a shipper and railroad would each submit a ``final offer'' of 
what it believes a reasonable rate to be, subject to short, non-
flexible deadlines, with the Board selecting one party's offer without 
revision. RRTF Report 14-20.
    In September 2019, the Board proposed FORR as a new procedure for 
challenging the reasonableness of railroad rates in smaller cases. See 
Final Offer Rate Rev. (FORR NPRM), EP 755 (STB served Sept. 12, 2019). 
FORR was based on a final offer selection procedure similar to the one 
described by the RRTF. FORR NPRM, EP 755, slip op. at 7. All Class I 
carriers who commented in that proceeding opposed FORR on both legal 
and policy grounds. In its comments, CN argued that the Board should 
abandon consideration of FORR and suggested that the Board instead 
consider including within its existing arbitration program a targeted 
avenue for resolving smaller rate disputes. See CN Comments 25-27, Nov. 
12, 2019, Final Offer Rate Rev., EP 755; see also CN Reply Comments 2-
3, Jan. 10, 2020, Final Offer Rate Rev., EP 755.\4\
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    \4\ The Association of American Railroads (AAR) also called for 
the Board to investigate how to encourage parties to make greater 
use of its voluntary arbitration program in a separate proceeding. 
See AAR Comments 3, Feb. 13, 2020, Hr'g on Revenue Adequacy, EP 761.

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[[Page 701]]

    The Board subsequently issued a decision in that proceeding to 
permit post-comment-period ex parte discussions with stakeholders 
regarding FORR. See Final Offer Rate Rev., EP 755 (STB served May 15, 
2020). Noting that its arbitration program has gone unused, the Board 
also expressed interest in exploring the issues raised in CN's 
comments, as well as whether and how its arbitration program at 49 CFR 
part 1108 could be modified to provide a practical and useful dispute 
resolution mechanism, particularly for stakeholders with smaller rate 
disputes. Id. at 2. Ex parte meetings with stakeholders occurred 
throughout the summer of 2020. See Arbitration NPRM, EP 765, slip op. 
at 4 (summarizing the content of the ex parte meetings).
    On July 31, 2020, five of the Class I carriers--CN,\5\ CSXT, The 
Kansas City Southern Railway Company (KCS), Norfolk Southern Corp. 
(NSR),\6\ and UP (collectively Petitioners)--filed a petition for 
rulemaking, asking the Board to add a new arbitration program focused 
specifically on resolving small rate disputes. Their proposed 
arbitration program, which would function alongside the existing 
arbitration program at 49 CFR part 1108, included changes that the 
carriers argued would create a more streamlined and flexible 
arbitration process which, in turn, would better incentivize both 
railroad and shipper participation. (Pet. 3, 21-25 (summarizing 
carrier's key proposed changes from the existing arbitration process).) 
Petitioners argued that a working arbitration program for small rate 
disputes would provide improved accessibility to the Board's rate 
review relief while also serving as an approach superior to FORR in 
fairness, legality, and economic integrity. (Id. at 1.)
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    \5\ The petition lists one of the petitioners only as ``CN.'' A 
supplemental filing identifies this party as the ``U.S. operating 
subsidiaries of CN.'' Although not identified in either filing, the 
Board understands ``CN'' to mean Canadian National Railway Company.
    \6\ Although the Petition referred to Norfolk Southern Corp., a 
noncarrier, subsequent filings instead refer to that entity's 
operating affiliate, Norfolk Southern Railway Company.
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    Several parties representing shipper interests opposed Petitioners' 
request for the Board to adopt a new arbitration program; instead, they 
urged the Board to adopt FORR. See Arbitration NPRM, EP 765, slip op. 
at 5-6 (summarizing filings in response to the petition for 
rulemaking). After considering the comments, the Board instituted a 
rulemaking proceeding to consider the petition for rulemaking on 
November 25, 2020, and then issued Arbitration NPRM setting forth the 
Board's arbitration proposal on November 15, 2021.
    As an initial matter, in Arbitration NPRM the Board stated that its 
authority to create procedures for arbitrating rate cases derives from 
49 U.S.C. 11708 and that, even though the agency already had an 
existing arbitration process created pursuant to that statute, there 
was no language in section 11708 prohibiting the Board from 
establishing a dual-track arbitration program. Arbitration NPRM, EP 
765, slip op. at 10-11.
    The Board stated that it decided to pursue a new arbitration 
program focused exclusively on small rate disputes for the following 
reasons. First, the Board noted that Congress required rate disputes to 
be included as an arbitration-eligible matter and that the agency's own 
long-stated policy had been to favor the resolution of disputes through 
the use of mediation and arbitration procedures rather than formal 
Board proceedings whenever possible. Arbitration NPRM, EP 765, slip op. 
at 8. As such, the Board concluded that ``it would be premature to 
discard the possibility of a voluntary, small rate case arbitration 
program without further exploring whether such an approach might be 
workable and the interplay of that approach with FORR.'' Id. Second, 
the Board found that a voluntary arbitration program focused on the 
resolution of small rate disputes could further the rail transportation 
policy of 49 U.S.C. 10101. Id. Lastly, the Board stated that if the 
FORR process was adopted, the rail carriers were likely to challenge it 
in court; by contrast, if all the Class I carriers agreed to 
participate in the arbitration program for five years, shippers would 
have a new avenue of potential rate relief with the certainty of 
carrier engagement. Id. at 9.
    The Board's proposal in Arbitration NPRM was modeled on some, but 
not all, aspects of the proposal set forth in Petitioners' petition for 
rulemaking. The Board made modifications where it found aspects of 
Petitioners' proposal were unbalanced or simply not feasible, or where 
changes were needed to better incentivize carrier and shipper 
participation. Id. at 9-10. The Board proposed the following 
fundamental aspects as part of the new arbitration program in 
Arbitration NPRM:
     First, the Board decided to defer final action in the FORR 
docket so that it could jointly consider adoption of a small rate case 
arbitration program and the FORR process as avenues of regulatory 
relief. Arbitration NPRM, EP 765, slip op. at 9 (``Whether to adopt any 
voluntary rate review arbitration program, how such a program might 
interact with the process proposed in the FORR docket, and whether to 
adopt the proposed FORR process will be guided by the parallel 
consideration of both proposals.'').
     Second, the ultimate decision on whether to adopt a new 
arbitration program would be influenced by whether all Class I carriers 
agreed to participate for a term of five years. Id. at 9 
(``[F]undamental to the Board's determination whether to enact the 
arbitration proposal in this docket will be a commitment of all Class I 
carriers to agree to arbitrate disputes submitted to the program for a 
term of no less than five years.'').
     Third, if the carriers chose to participate in the 
arbitration program, they would be exempt from having their rates 
challenged under the FORR process. Id. at 14 (``The Board will propose 
that any carrier that opts into the voluntary, small rate case 
arbitration program would be exempt from any final FORR rule adopted in 
Docket No. EP 755.'').
     Fourth, under the carriers' agreement to participate for a 
five-year term, carriers would be permitted to withdraw from the 
program only if there is a material change in the law. Id. at 16 (``The 
Board will propose a provision allowing any party to withdraw due to a 
material change in the law.'') However, whether the Board included this 
right to withdraw would be influenced by whether there was another 
``readily accessible small rate case review process [to serve] as a 
backstop in the event a carrier is no longer participating in the 
arbitration program.'' Id. at 11-12.
    Comments in response to Arbitration NPRM were filed on January 14, 
2022, by American Fuel & Petrochemical Manufacturers (AFPM); the 
Association of American Railroads (AAR); BNSF Railway Company (BNSF); 
Indorama Ventures (Indorama); the Industrial Minerals Association-North 
America (IMA-NA); the National Grain and Feed Association (NGFA); Olin 
Corporation (Olin); the U.S. Department of Agriculture (USDA); the 
American Chemistry Council, Corn Refiners Association, Institute of 
Scrap Recycling Industries, National Industrial Transportation League, 
The Chlorine Institute, and The Fertilizer Institute (collectively, 
Coalition Associations); \7\

[[Page 702]]

and CSXT, KCS, NSR, UP, the U.S. operating subsidiaries of Canadian 
Pacific (CP), and the U.S. operating subsidiaries of CN (collectively, 
Joint Carriers).\8\ Replies were filed on April 15, 2022, by AAR, 
Coalition Associations, and Joint Carriers.
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    \7\ In prior comments submitted in this docket, these parties 
referred to themselves as ``Joint Shippers,'' which was the 
designation also used by the Board in Arbitration NPRM. In their 
comments, these groups explain that they now refer to themselves as 
``Coalition Associations'' to maintain consistency with the 
designation they have used in Final Offer Rate Review, Docket No. EP 
755. (Coalition Ass'ns Comment 1 n.1.) The Board will also refer to 
these parties as Coalition Associations in this decision.
    \8\ These carriers comprise six of the existing seven Class I 
carriers. The other Class I carrier, BNSF, filed separate comments.
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    For the reasons set forth below, the Board will adopt regulations 
implementing a new arbitration program devoted exclusively to resolving 
small rate disputes. In Part I, the Board explains the fundamental 
aspects of the new arbitration program. In Part II, the Board explains 
the limits on the number of arbitrations that may be brought under the 
new program. In Part III, the Board discusses the procedural aspects of 
the arbitration process. The text of the final rule is set forth below.
    In this final rule, the Board will make certain modifications to 
its proposal in Arbitration NPRM. Unless specifically discussed below, 
any proposed regulation in Arbitration NPRM not discussed here was not 
addressed in the comments or replies and is therefore being adopted 
without change. Any textual changes not specifically discussed are non-
substantive and designed to give the regulatory text more clarity.
    As noted, in a decision being issued concurrently in Final Offer 
Rate Review (FORR Final Rule), EP 755 (STB served Dec. 19, 2022), the 
Board will also adopt the FORR process to serve as an alternative to 
the new arbitration program in the event that the arbitration program 
does not become operative because all Class I carriers have not opted 
in. Additionally, in the event a carrier subsequently withdraws from 
the program, the FORR process will apply to that carrier.

Part I--Fundamentals of the Small Rate Case Arbitration Program

    For the reasons discussed below, the Board will adopt a final rule 
implementing a new small rate case arbitration program. However, to 
incentivize railroad participation in the arbitration program, the 
Board will allow carriers to be exempt from rate challenges under the 
FORR process during their participation in the arbitration program.
    In addition, the Board finds that it is important that shippers 
across the rail network have access to the same means of rate relief. 
Accordingly, for the arbitration program to become operable, the Board 
will require that all Class I carriers agree to participate in the 
program. If all Class I carriers agree, the Board will issue a notice 
that commences the new arbitration program, allowing it to be used and 
initiating the FORR exemption.
    Class I carriers will have a limited window--20 days from the 
effective date of these regulations--to decide whether to participate 
in the new arbitration program. If not all Class I carriers 
participate, the Board will not issue the notice commencing the new 
arbitration program, resulting in the program being inoperable, and all 
Class I carriers will be subject to rate challenges under the FORR 
process. By agreeing to participate, carriers would commit to 
participate in any arbitrations brought against them under this program 
for a five-year term.
    Lastly, if the arbitration program becomes operable, the Board will 
allow carriers to withdraw on an individual basis during the five-year 
term if there is a material change in the law affecting regulation of 
railroad rates. The withdrawal of one or more carriers on the basis of 
a material change in law will not terminate the arbitration program 
once it has become effective but will subject the withdrawing carrier 
to challenges under the FORR process.

A. Comments

1. Shipper Interests
    Several parties representing shipper interests argue that the Board 
should not adopt an arbitration program in place of adopting FORR 
because the new arbitration process does not accomplish the goal of 
making rate relief more accessible to shippers than it is under the 
Board's existing rate case methodologies. Similarly, several of the 
shipper interests claim that FORR is the superior process in terms of 
providing more accessibility to rate relief. As such, they argue that 
if the Board does adopt the arbitration program, it should eliminate 
the FORR exemption so that shippers have the choice of whether to bring 
challenges under arbitration or FORR.
    Olin. Olin requests that the Board adopt the FORR proposal because 
the arbitration process contains mechanisms that favor railroads. (Olin 
Comment 1.) Olin states that if the Board does decide to adopt the new 
arbitration program, the Board should not allow participating rail 
carriers to be exempt from FORR. (Id. at 1-2.) Olin argues that the 
Arbitration NPRM proposal undermines all the potential value of the 
FORR process and that the two processes are fundamentally inconsistent 
with each other. (Id. at 2.) According to Olin, the Board has 
essentially proposed a new rate case process for small disputes, while 
simultaneously proposing to make it unavailable for use. (Id. at 10.) 
Olin also disputes that arbitration will necessarily be quicker, less 
expensive, more reliable, or more predictable than an adjudication 
before the Board because carriers will still have the ability to delay 
and increase costs and complexity. (Id. at 11.)
    Coalition Associations. In their comment, Coalition Associations 
state that their main concern with the proposal set forth in 
Arbitration NPRM is the FORR exemption. (Coalition Ass'ns Comment 1.) 
They argue that the FORR exemption effectively requires shippers to 
arbitrate their rate claims, even though the Board does not have 
authority to impose such a requirement. (Id. at 1-2.) Coalition 
Associations also argue that the FORR exemption would be inconsistent 
with the goal of increasing access to rate review because the 
arbitration program includes features that make it inaccessible. (Id. 
at 2, 6-7.) Accordingly, they argue that if the Board insists on 
keeping the FORR exemption, it should address concerns about 
accessibility by making the program public, eliminating the case 
limits, and ensuring complainants have access to the Waybill Sample. 
(Id. at 2, 7.)
    In their reply, Coalition Associations argue that the Board should 
adopt FORR, but if it also chooses to adopt the arbitration program, it 
should eliminate the FORR exemption. (Coalition Ass'ns Reply 5.) They 
maintain that if the new arbitration program was the best path forward 
for stakeholders, there would be no need to exempt participating 
railroads from rate challenges under FORR. (Id. at 5.) They argue that 
the new arbitration program contains both higher risks and higher costs 
for shippers than FORR. (Id.) In particular, they claim that the new 
arbitration program is less accessible than FORR because the program 
includes confidentiality requirements, case limits, discovery limits, 
waybill access limits, and a longer evidentiary phase. (Id. at 5-10.)
    Coalition Associations argue that carriers will still have a strong 
incentive to participate in the arbitration program even if the Board 
eliminates these features. In particular, they argue that the non-
precedential nature of arbitration decisions would be attractive to 
carriers. (Id. at 10.) They argue that a non-precedential decision 
``provides shippers with no certainty that they will

[[Page 703]]

prevail in a rate challenge and, thus, little leverage in rate 
negotiations.'' (Id. at 11.) They claim that the non-precedential 
nature of arbitration decisions is even more valuable given that FORR 
decisions would be precedential and the likelihood that a railroad 
would receive an adverse decision under FORR is high. (Id.)
    IMA-NA and Indorama. IMA-NA and Indorama state they would only 
support the new arbitration program if the Board eliminates the FORR 
exemption for railroads that participate in the program. (IMA-NA 
Comment 2, 17; Indorama Comment 2, 17.) They state that FORR is an 
acceptable process given that it is already used in a number of 
existing rail and non-rail contexts. (IMA-NA Comment 7-9; Indorama 
Comment 7-9.) They also urge the Board to eliminate various aspects of 
the new arbitration program proposed in Arbitration NPRM so that the 
new arbitration program is more in line with FORR. Specifically, they 
argue that the Board should eliminate the limits on the number of 
arbitrations, the confidentiality requirements, the non-precedential 
nature of arbitration decisions, and discovery limits. (IMA-NA Comment 
19; Indorama Comment 19.) \9\
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    \9\ IMA-NA and Indorama note that if the Board eliminated the 
FORR exemption, then these aspects of the new arbitration program 
would be less of a concern because shippers would have the option to 
choose which of the two processes they want to use. (IMA-NA Comment 
19; Indorama Comment 19.)
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    NGFA. NGFA supports a new arbitration program for small rate 
disputes but states that it does not view such a program as a 
substitute for the Board finalizing FORR. NGFA argues that the two 
processes can be structured in a way to coexist and complement one 
another. NGFA therefore strongly opposes the idea of adopting the new 
arbitration program but not FORR. (NGFA Comment 2-3.)
    NGFA states that its members generally do not support an 
arbitration program that would eliminate the ability of a rail shipper 
to file a formal complaint to test the reasonableness of rail rates 
using any of the Board's legally available rate-reasonableness 
methodologies. However, NGFA states that it also favors arbitration to 
resolve disputes. (Id. at 4.) Accordingly, NGFA argues that the Board 
should reconsider a proposal that NGFA made in response to the initial 
petition for rulemaking, specifically, that the FORR exemption last 
only until the Board conduct its programmatic review, at which point 
the FORR exemption would expire. (Id. at 5.)
    AFPM. AFPM supports adoption of the arbitration program in addition 
to FORR (not as an alternative), because it believes that FORR provides 
more promise in providing viable options for shippers to dispute small 
rate cases. (AFPM Comment 2.) AFPM argues that the FORR exemption is a 
``non-starter.'' (Id. at 5.) It argues that shippers should have the 
option to pursue a dispute through either FORR or the new arbitration 
program, because railroads should not be able to limit shippers' 
options by simply participating in the arbitration program. (Id. at 2.) 
AFPM also notes that a FORR exemption would provide no incentive for 
carriers to seek improvements to a voluntary arbitration program. (Id. 
at 4.) It also argues that the FORR exemption could disadvantage 
shippers if one program turns out to be superior or not viable. (Id. at 
6.)
2. USDA
    USDA argues that, between the proposals for a new arbitration 
program and FORR, FORR is the better and more necessary of the two. 
However, it states that the ``differences [between the two proposals] 
are small relative to the benefits that would be provided by either 
FORR alone or'' jointly adopting both proposals. (USDA Comment 2.) USDA 
emphasizes the need for at least finalizing FORR because participation 
in a new arbitration program will not be compelling without an 
effective litigatory backstop. (Id.) Conversely, USDA states that there 
is little benefit in just adopting a new arbitration program by itself. 
(Id. at 3.) \10\
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    \10\ USDA argues that one of the main differences between FORR 
and the proposed arbitration process is in how a decision is made. 
Specifically, it claims that the process for deciding where to set 
the rate is clear in FORR but unclear in arbitration. (USDA Comment 
3.) The Board addresses this concern below (see infra Part III.E).
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    USDA's key concern with the Arbitration NPRM proposal is that it is 
voluntary. (Id.) USDA argues that private firms do not typically need 
the government to implement voluntary tools because they will readily 
take advantage of mutually beneficial opportunities and, therefore, 
carriers here should not be exempt from FORR. USDA argues that, under 
the Board's scheme, the arbitration program is not voluntary because it 
allows railroads to choose which process works best for them and 
shippers simply have to go along with it. (Id.) USDA argues that if 
FORR is finalized, there is nothing preventing shippers and railroads 
from engaging in their own truly voluntary arbitration process (one 
where both shippers and railroads have opted in). According to USDA, 
adoption of FORR (without the new arbitration program and a FORR 
exemption) would actually incentivize shippers and railroads to come up 
with their own arbitration process. (Id.)
3. Railroad Interests
    The railroad interests support adoption of the arbitration program 
over FORR, as well as the adoption of an exemption from the FORR 
process for carriers that choose to participate in the arbitration 
program.
    Joint Carriers. Joint Carriers argue that the purpose of the 
arbitration program should not be to provide a limitless forum for 
resolving any and all rate disputes, particularly since shippers can 
still seek resolution of their rate disputes through processes such as 
Three-Benchmark and Simplified Stand-Alone Cost (Simplified-SAC). 
(Joint Carriers Reply 2-3, 12.) Instead, Joint Carriers argue that the 
arbitration program should be tailored to providing a quick, cost-
effective process for resolving modest rate disputes. (Id. at 13.) \11\
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    \11\ Joint Carriers further argue that ``distinguished 
economists'' who have studied these matters have concluded there is 
no evidence that the Board's current approaches are failing or 
generating excessive revenues, that the Simplified-SAC process 
provides an effective tool to protect captive shippers, and the 
reason that shippers do not often use these formal processes could 
be that carriers are not charging unreasonable rates to captive 
shippers. (Joint Carriers Reply 6-7.)
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    Joint Carriers also oppose the idea of eliminating the FORR 
exemption. They also oppose NGFA's suggestion that the FORR exemption 
last three years. Instead, they argue that the FORR exemption should 
last for as long as carriers participate in the arbitration program. 
(Joint Carriers Reply 15.)
    BNSF. BNSF states that the new arbitration program is a far better 
path to addressing shipper needs than the FORR proposal. (BNSF Comment 
1.)
    AAR. AAR supports the ``goals and general approach'' set forth in 
Arbitration NPRM; however, it suggests some improvements. (AAR Comment 
1.) AAR asserts that the Board's arbitration proposal improves the 
current arbitration program and will be viewed by both railroads and 
shippers as a more fair and viable approach to small rate disputes. 
(Id. at 3.) In particular, AAR supports the various protections the 
Board proposed to keep the arbitration process confidential, the 
ability of parties to select arbitrators not on the roster, the ability 
of the arbitration panel to rule on market dominance and the one-case-
per-shipper limit that would prevent improper disaggregation of cases. 
(Id. at 4-6.)
    AAR also disputes Olin's assertion that arbitration is not 
necessarily more

[[Page 704]]

efficient than administrative litigation. (AAR Reply 10.) In response 
to Olin's contention that Class I railroads would use every tactic at 
their disposal to make arbitration difficult, AAR states that Olin does 
not explain why it would be improper for a carrier to exercise its 
constitutional right to defend itself from an accusation that it has 
violated federal law. (Id.) AAR argues that, in any event, Olin cannot 
seriously dispute that arbitration is widely considered a more 
efficient means of dispute resolution. (Id.) AAR argues that if Olin's 
concerns about railroads' ability to drive up the costs of arbitration 
program later materialize, the Board can address it at that time. (Id. 
at 10-11.)
    AAR states that if the Board does move ahead with FORR, it should 
adhere to its proposed approach of allowing participating carriers to 
be exempt from FORR. (Id. at 10.)

B. Board Action

1. Adoption of the Arbitration Program, FORR, and the FORR Exemption
    The Board has explained the need for a new process that makes rate 
relief more accessible to shippers, particularly those with small 
disputes. See FORR Final Rule, EP 755, slip op. at 3-4 (explaining that 
the Board has recognized that the litigation costs required to bring 
cases under the Board's existing rate reasonableness methodologies can 
quickly exceed the value of a case involving a smaller dispute); 8-10 
(explaining the need for a new procedure to resolve small rate disputes 
in response to arguments from railroad interests that such a new 
procedure is unnecessary). As discussed herein, and in FORR Final Rule, 
the Board believes that both a new arbitration program focused on small 
rate disputes and the FORR process would be likely to achieve the 
Board's goal of increased access to potential rate relief, albeit 
through different mechanisms. Additionally, the Board finds that the 
arbitration program would further the rail transportation policy of 49 
U.S.C. 10101 by facilitating the expeditious handling and resolution of 
proceedings (49 U.S.C. 10101(15)), supporting fair and expeditious 
regulatory decisions when regulation is required (49 U.S.C. 10101(2)), 
and helping to maintain reasonable rates where there is an absence of 
effective competition (49 U.S.C. 10101(6)).
    Accordingly, both the arbitration program and the FORR process are 
appropriate means for improving access to rate relief for shippers with 
small disputes. Nonetheless, the Board has decided to pursue the 
implementation of the arbitration program as its first step. As the 
Board has said in this proceeding and others, it favors the resolution 
of disputes through the use of mediation and arbitration procedures, in 
lieu of formal Board proceedings, ``whenever possible.'' See 
Arbitration NPRM, EP 765, slip op. at 8 (citing 49 CFR 1108.2(a) and 
Bos. & Me. Corp.--Appl. for Adverse Discontinuance of Operating Auth.--
Milford-Bennington R.R., AB 1256, slip op. at 10 (STB served Oct. 12, 
2018)). In addition, the fact that Congress specifically directed the 
Board to add rate disputes to the list of arbitrable matters and 
increased the potential relief available in such cases to $25 million 
demonstrates a congressional policy in favor of arbitration. By 
adopting the final rule, the Board would have an arbitration process 
that can be both successful in resolving small rate cases and that 
parties have expressed a tentative willingness to use. The Board 
concludes that these policy benefits make a small rate case arbitration 
program the better approach from which to start. As proposed in 
Arbitration NPRM, EP 765, slip op. at 11, 12, the Board will roll out 
the program with an initial term of five years, along with a built-in 
review--to be conducted after no more than three years--to allow for an 
updated assessment of the program's effectiveness.
    The Board has considered giving complainants the ability to choose 
whether to challenge a rate using either arbitration or FORR, as most 
of the shipper interests urge. However, the Board concludes that such a 
structure is unlikely to lead to a successful launch of the arbitration 
program. Participation in arbitration must be voluntary, see 49 U.S.C. 
11708(a), and experience has demonstrated that carriers will not choose 
to voluntarily arbitrate rate disputes without a significant incentive 
to do so. See Arbitration NPRM, slip op. at 3 (noting that while three 
carriers have opted into the Board's arbitration program, none have 
done so for the purpose of arbitrating rate disputes). If the Board 
permitted complainants to choose between arbitration and FORR at the 
outset, it is unlikely a carrier would agree to participate in the 
arbitration program at this time. Allowing carriers to be exempt from 
challenges under FORR would provide, in the Board's view, a proper 
incentive, while still creating a more accessible avenue of potential 
relief to shippers with small rate disputes. Therefore, the Board will 
allow Class I carriers the opportunity to decide whether they still 
desire to be subject to the arbitration program, with the modifications 
required by the Board, in exchange for being exempt from FORR 
challenges. See infra Part I.C.1.b (explaining that Class I carriers 
will have a 50-day window from the date of this decision to inform the 
Board whether they intend to participate in the arbitration program).
    However, as explained in Arbitration NPRM, the Board concludes the 
arbitration program should only be implemented if all Class I carriers 
agree to participate in the program. See infra Part I.C.1.a (explaining 
the importance of Class I carriers being subject to the same rate 
relief procedures to ensure fairness). The Board will therefore also 
structure the new regulations so that the arbitration program can 
become operable only if the Board publishes a notice in the Federal 
Register confirming that all Class I carriers have agreed to 
participate. As noted, participation for Class I carriers in the 
arbitration program will begin with an initial term of five years, with 
the Board conducting a programmatic review no later than three years 
after start of the program. In response to comments, the Board will 
provide clarity as to when the five-year period begins and how the 
program may continue at the end of this five-year period.
    The Board recognizes that it is possible that not all Class I 
carriers will agree to voluntarily participate in the new arbitration 
program, even with the incentive of an exemption from FORR. FORR will 
therefore serve as an available avenue of rate relief in the event that 
one or more of the carriers chooses not to participate in the 
arbitration program at the initial phase or withdraws from the program 
after it becomes operable. Regardless of which option the Class I 
carriers choose--opting into arbitration or being immediately subject 
to FORR--either process will provide shippers with smaller disputes a 
new avenue of rate relief that is more accessible than the Board's 
existing rate case processes.
2. Arguments That Arbitration Will Not Make Rate Relief More Accessible
    One theme in the shipper interests' comments is that the 
arbitration process is not more accessible than the existing rate case 
processes and therefore should either not be adopted or be 
significantly modified. (See Olin Comment 10; Coalition Ass'ns Comment 
2, 6; Coalition Ass'ns Reply 5-10; IMA-NA Comment 19; Indorama Comment 
19.) The Board finds these arguments unconvincing. Rather, the Board 
expects that the arbitration process will provide significant benefits 
over formal adjudication of rate disputes, especially

[[Page 705]]

where the amount in dispute is small. For the reasons described below, 
under the arbitration process being adopted here, complainants should 
be able to challenge rates more quickly than under the existing rate 
processes and without incurring as much expense.
a. Time Savings From Arbitrating
    The procedural schedule for a Three-Benchmark case is 240 days (or 
eight months). See Simplified Standards for Rail Rate Cases (Simplified 
Standards), EP 646 (Sub-No. 1), slip op. at 23 (STB served Sept. 5, 
2007). Although the schedule for an arbitration would vary, the Board 
estimates that the time from when an arbitration is initiated (by the 
filing of the initial notice of intent to arbitrate) until the 
arbitration panel issues its decision would be no more than 180 days 
(or six months).\12\ That period would be less if the parties forgo the 
initial mediation process, which, as discussed below, the Board will 
allow a complainant to waive unilaterally. See infra Part III.A. In 
addition, the Board disagrees with the assertion that an appeal to the 
Board would be filed in all arbitrations. See infra Part I.B.3.
---------------------------------------------------------------------------

    \12\ See infra App. B (estimated timeline of the arbitration 
process).
---------------------------------------------------------------------------

b. Cost Savings From Arbitrating
    The arbitration process should also create opportunities for 
litigants to reduce litigation costs. First, there will be limits on 
the amount of discovery permitted in arbitration, which will force 
parties to use discovery requests only to obtain essential evidence, 
which in turn should limit the number of discovery disputes and save 
parties litigation costs. See RRTF Report 10 (stating that 
``[d]iscovery disputes were viewed [by stakeholders] as greatly adding 
to the cost of litigation''). Third, the discovery limits, compressed 
procedural schedule (90 days unless extended), and any other procedural 
restrictions imposed by the arbitration panel (limits on the number or 
length of pleadings, or on the arguments that parties may address in 
their pleadings) should collectively force parties in an arbitration to 
present a more focused set of arguments. If a shipper believes that 
there are several meritorious arguments as to why the rate is 
unreasonably high, it may decide--because of the procedural 
limitations--that it would be best to limit its case to only its one or 
two strongest arguments. The procedural limitations will also force 
parties, when making these arguments, to keep their presentations 
concise. Fourth, the informal nature of the arbitration process should 
reduce litigation costs. The Board expects that various communications 
between the parties and the arbitration panel would be through less 
formal communication, such as emails or phone calls, instead of formal 
motions and written orders.
    A key example of how the arbitration process could be less costly 
than the existing rate review methodologies involves the ``other 
relevant factors'' component of the Three-Benchmark methodology, in 
which defendant carriers can argue that the maximum reasonable rate 
should be higher or lower than the level derived using the Three-
Benchmark approach. The RRTF Report noted that shippers had indicated 
that a concern with the Three-Benchmark methodology was the other 
relevant factors part of the analysis. RRTF Report 49-51. Specifically, 
the report stated that shippers ``confirmed that a potential 
complainant, faced with the prospect of having to respond to an open-
ended, voluminous collection of arguments and evidence proposing `other 
relevant factors'--including attorneys' and consultants' fees for 
reviewing and responding to these arguments and evidence--would not 
find the Three-Benchmark test to be `relatively simple and 
inexpensive.' '' Id. at 51 (citing Simplified Standards, EP 646 (Sub-
No. 1), slip op. at 22). Accordingly, the RRTF proposed imposing page 
limits on arguments regarding other relevant factors. Here, the 
arbitration process should accomplish the same end. Specifically, the 
procedural confines of the arbitration process (limited discovery, 
short procedural schedule) will prevent arguments regarding other 
relevant factors from becoming unwieldy. Additionally, depending on the 
facts of the case, the arbitration panel could impose limits on the 
scope of the arguments regarding other relevant factors if it finds 
such arguments are unlikely to be meritorious.
    Some of the shipper interests point out that parties will have to 
pay for the cost of the arbitrators, (IMA-NA Comment 18; Indorama 
Comment 18; AFPM Comment 12), which is an expense that does not exist 
in formal cases. Nevertheless, the other cost savings that arbitration 
will produce are intended to more than offset this added expense. 
Unfortunately, it is not possible to make an actual comparison of costs 
because there is no evidence in the record here, or any recent Board 
proceedings, on the cost to litigate a Three-Benchmark case, and the 
Board will not know the cost to arbitrate until cases are actually 
arbitrated.\13\ However, it is clear that shippers have asserted that 
the existing rate processes are cost-prohibitive and the Board finds 
that an alternate approach with the potential to lower costs is worth 
pursuing.
---------------------------------------------------------------------------

    \13\ As noted below, the Board will conduct a programmatic 
review of the arbitration process no later than three years after 
the program becomes effective. See infra Part III.J. The Board will 
modify the language of the regulation that requires the agency to 
conduct this review to specifically explore the issue of cost 
savings by seeking data from parties that have brought arbitrations. 
See infra App. A (finalized 49 CFR 1108.32).
---------------------------------------------------------------------------

3. Arguments That Arbitration Will Not Be as Effective as FORR

    Another theme in the shipper interests' comments is that 
arbitration will not be as effective as FORR and, as a result, the 
Board either should not adopt the arbitration program or, 
alternatively, should eliminate the FORR exemption. (Olin Comment 2; 
Coalition Ass'ns Comment 5.) The Board also finds these arguments 
unpersuasive.
    Despite the fact that FORR is a rate reasonableness adjudicatory 
process and arbitration is an alternative dispute resolution process, 
they share a number of key features. (See USDA Comment 2.) As in the 
FORR process, shippers will have broad methodological flexibility in 
the arbitration process to present new methodologies. The amount of 
relief available in both processes will also be the same. See infra 
Part III.H.
    The arbitration process will also have a timeline for resolution 
similar to FORR. The FORR process adopted today will take 149 day or 
169 days (depending on whether the streamlined market dominance 
approach is used), while the arbitration process will take 
approximately 180 days (though often less) from initiation of the 
process until the arbitration panel issues its decision. IMA-NA, 
Indorama, and AFPM argue that the arbitration process will take longer 
than FORR because arbitration decisions will almost always be appealed 
to the Board, whereas FORR decisions would be appealed directly to a 
court. (IMA-NA Comment 18; Indorama Comment 18; AFPM Comment 12.) 
However, it is not at all certain that every arbitration will be 
appealed to the Board, given the relatively small awards available 
(compared to other rate reasonableness adjudicatory procedures), the 
fact that appeals would not be confidential, and that there are limited 
grounds on which parties can appeal. See 49 U.S.C. 11708(h).
    IMA-NA, Indorama, and AFPM argue that the arbitration process could 
be

[[Page 706]]

more expensive than a FORR case because the parties have to pay the 
costs of the arbitrator, which they would not incur in a FORR case. 
(IMA-NA Comment 18; Indorama Comment 18; AFPM Comment 12.) The fact 
that parties would have to pay the arbitrators is indeed an added cost 
that complainants in a FORR case would not incur. But both processes 
are based on the same concept of creating a more streamlined, less 
formal process for determining rate reasonableness. Moreover, given the 
flexibility afforded to the arbitration panel to set arbitration-
specific procedures, the parties can request procedures that reduce 
costs. Accordingly, the Board does not expect the costs between 
arbitration and FORR to be significantly different.
    In Part III, the Board explains why it is adopting each of the 
arbitration procedures, including those that differ from FORR. In doing 
so, the Board has taken the comments of the parties into account and 
modified the regulatory text to develop an arbitration process that 
aims to be fair and equitable to both complainants and carriers. For 
example, as discussed below, see infra Part III.C.3.a, the Board has 
determined that the limits on waybill access proposed in Arbitration 
NPRM were too restrictive and has adjusted them accordingly. Given the 
concern from the shipper interests that the arbitration program will 
not be effective, the Board also commits to performing a programmatic 
review no later than three years after the program becomes effective. 
See infra Part III.J.
4. Arguments That Complainants' Will Lack the Ability To Choose Between 
Processes
    Some of the shipper interests and USDA oppose the FORR exemption 
because they argue that complainants should have the ability to decide 
whether to challenge rates using arbitration or FORR. (Olin Comment 13; 
AFPM Comment 1-2; USDA Comment 3.) However, the Board addressed this 
concern in Arbitration NPRM, stating that ``[c]reating a program in 
which carriers can obtain an exemption from any process adopted in the 
FORR docket in exchange for agreeing to arbitrate smaller rate disputes 
would incentivize railroads to participate, and, in turn, create a 
means for shippers to obtain resolution through arbitration.'' 
Arbitration NPRM, EP 765, slip op. at 14. Under 49 U.S.C. 11708, 
arbitration is a voluntary process and, as such, the only way to obtain 
participation from stakeholders is if the program offers them benefits. 
Here, Joint Carriers and BNSF have indicated that they may be willing 
to participate if the Board were to exempt them from having their rates 
challenged under FORR. The Board concludes that such a trade-off is 
appropriate at this time given the Board's finding that the arbitration 
process here will improve access to rate relief and advance the 
agency's long-standing effort to encourage parties to use alternative 
dispute resolution processes when possible. Indeed, the Board is also 
making other trade-offs to incentivize participation from shippers and 
rejecting other features that carriers seek.
5. Arguments That Railroads Will Participate in Arbitration Without a 
FORR Exemption
    Coalition Associations assert that carriers will have an incentive 
to participate in the arbitration program even without the FORR 
exemption citing, in particular, the fact that arbitration decisions 
would be non-precedential. (Coalition Ass'ns Reply 10-11.) But parties 
have not used the Board's existing voluntary arbitration program, 
notwithstanding the fact that decisions under that program would also 
be non-precedential. See 49 U.S.C. 11708(d)(5); 49 CFR 1108.10. 
Moreover, the carriers that first proposed the arbitration program made 
clear that their goal was for the program to serve as an alternative to 
being subject to FORR:

    The railroads discussed the reasons why they believed that 
voluntary arbitration would be attractive for both railroads and 
customers and a better alternative than other proposals that have 
been suggested for determining the maximum lawful rate in small rate 
cases. The railroads suggested that as an incentive to encourage a 
Class I railroad to opt into such a voluntary arbitration program, 
the Board could consider a waiver from other rail rate review 
methodologies, such as FORR or the revenue adequacy constraint.

CN, CSXT, NSR, & UP Ex Parte Meeting Mem. 2, July 10, 2020 (filing ID 
300866) Final Offer Rate Rev., EP 755. Many of the shipper interests 
themselves have stated that Petitioners' motivation for pursuing 
arbitration was to secure a FORR exemption. (See Olin Comment 3 
(``[F]ive railroads developed and proposed the EP 765 Arbitration 
process in July of 2020 as a shield from the possibility that the STB 
might adopt FORR as a rate-evaluation tool''); Coalition Ass'ns Comment 
6 (``The whole point of this scheme was to cut shippers off from FORR 
by forcing them to arbitrate under the Petitioners' preferred 
process''); NGFA Comment 7 (``[T]he primary driver for the Petitioners' 
proposing to modify the arbitration regulations in the first place was 
to obtain an exemption from having the reasonableness of their rates 
reviewed under FORR rules and standards.'').)
    In any event, the fact that arbitration decisions would be non-
precedential would not by itself address Joint Carriers' concern that 
such decisions could be used in future rate negotiations, as 
complainants could still use these decisions in future rate 
negotiations. (See Joint Carriers Reply 14-15 (noting that IMA-NA and 
Indorama have indicated that they wish these non-precedential decisions 
to be public for that very reason).)
    The Board finds that implementation of NGFA's suggestion that the 
FORR exemption last only until the agency conducts the programmatic 
review is unnecessary. As noted, the Board will conduct a programmatic 
review no later than three years after the program becomes effective, 
at which point the Board will consider whether the program should 
continue and, if so, whether any modifications should be made, 
including whether the FORR exemption should remain intact. Barring 
unforeseen difficulties, that would be the appropriate time for the 
Board to consider the effectiveness of the FORR exemption and other 
program features.
6. Other Arguments Opposing Adoption of the Arbitration Program and 
FORR Exemption
    The shipper interests raise arguments disputing the Board's 
authority to establish this arbitration program and the propriety of 
such a program. The Board addresses these arguments below.
a. Participation in the Arbitration Program Would Be Voluntary
    Olin argues the proposal in Arbitration NPRM is not ``voluntary'' 
within the meaning of 49 U.S.C. 11708(a) because FORR would no longer 
be an available option and the Board's other rate challenge processes 
have been shown to be infeasible. Olin states that shippers therefore 
would have to choose to use the new arbitration program (which it 
claims favors carriers) or pay the rate it is being charged. (Olin 
Comment 11-12; see also IMA-NA Comment 7, Indorama Comment 7 (arguing 
that large non-coal shippers and all small shippers have nowhere to 
turn if they believe their rates are unreasonable).) Similarly, 
Coalition Associations claim that the Board's proposal is tantamount to 
a ``de facto arbitration mandate,'' which the Board does not have 
authority to implement. (Coalition Ass'ns Comment 3-5; see also

[[Page 707]]

AFPM Comment 4.) Specifically, Coalition Associations argue that the 
FORR exemption ``effectively mandates'' that shippers with small rate 
disputes use arbitration because there are no other formal rate review 
processes accessible for shippers with small disputes. (Coalition 
Ass'ns Comment 4-5.) They claim that Congress confirmed that the Board 
cannot mandate arbitration of rate disputes when it passed the STB 
Reauthorization Act of 2015, which required the Board to establish a 
``voluntary'' arbitration process. (Id. at 4.) Moreover, Coalition 
Associations argue that the Board has itself long recognized that it 
cannot require arbitration of rate disputes. (Id.) Coalition 
Associations also argue that it is difficult to imagine that Congress 
contemplated this scenario when it directed the Board to establish a 
``voluntary'' arbitration program. (Id. at 6.)
    Joint Carriers dispute assertions that the FORR exemption is 
tantamount to a de facto arbitration mandate. They argue that the Board 
specifically rejected this argument in Arbitration NPRM when it found 
that incentivizing carrier participation by offering them an exemption 
from FORR would provide shippers with an important means to access 
potential rate relief, i.e., the new arbitration program. (Joint 
Carriers Reply 5 (citing Arbitration NPRM, EP 765, slip op. at 13-14).) 
They also argue that shippers' ability to use the arbitration program 
would still be voluntary. (Id. at 8.) AAR also disputes Olin's 
assertion that the new arbitration program would be compulsory, as 
shippers would be able to use the arbitration program or file rate 
cases under the existing methodologies. (AAR Reply 11.)
    The Board disagrees with assertions that the arbitration process 
(including an exemption from FORR for participating carriers) would not 
be voluntary or that it creates a mandate to arbitrate. Although the 
Board has raised concerns about the efficiency and practical 
accessibility of its existing rate case processes for instances when 
the amount in dispute is small relative to the cost of bringing a case, 
FORR NPRM, EP 755, slip op. at 3; Market Dominance Streamlined 
Approach, EP 756, slip op. at 4 (STB served Sept. 12, 2019), the Board 
has not held that those concerns make the processes fatally defective, 
nor has the Board disavowed the economic reasoning of those processes. 
Those existing processes will continue to be available after enactment 
of this arbitration program and may be used by shippers with smaller 
rate disputes. Indeed, the Board recently adopted regulations 
establishing a streamlined approach for pleading market dominance in 
rate reasonableness proceedings with the intent that it would be used 
in the Board's existing rate case methodologies. See Market Dominance 
Streamlined Approach, EP 756, slip op. at 33-34 (STB served Aug. 3, 
2020) (finding that use of the streamlined approach should be permitted 
in rate cases brought under any methodology).
    Accordingly, a shipper's options would not be limited to bringing 
an arbitration or doing nothing.\14\ As has always been the case, 
shippers will have a number of options and will need to decide which 
option best suits their needs based on the size of the dispute, 
available resources, and many other factors. By implementing a new 
arbitration program (with FORR serving as one of various alternatives 
if carriers choose not to participate), the Board is attempting to 
build upon its efforts to make rate relief more accessible. The Board's 
final rule here is thus consistent with the statutory requirement that 
arbitration be voluntary.
---------------------------------------------------------------------------

    \14\ In fact, a complaint was recently filed by a shipper 
seeking to challenge a carrier's rate under both the Full Stand-
Alone Cost (Full-SAC) and revenue adequacy constraints. Omaha Pub. 
Power Dist. v. Union Pac. R.R., Docket No. NOR 42173.
---------------------------------------------------------------------------

b. The Arbitration Program Is Not Based on Improper ``Deal-Making.''
    Olin regards the Board's statement that a FORR exemption would 
incentivize railroads to participate in the arbitration program as 
``inconsistent with the interests of small shippers, and contrary to 
the STB's statutory duties.'' (Olin Comment 13.) It further states that 
``[t]he Board should not evaluate potential regulations as though it 
were engaged in deal-making'' and that ``[r]ailroads should not be 
permitted to excuse themselves from Board regulation because a select 
group of railroads would prefer to be `regulated' in a preferred manner 
of their own choosing.'' (Id. at 13, 14.) Olin argues that the Board 
should not need the consent of the railroad industry to allow for 
adoption of a regulation that Congress has required. (Id. at 13.)
    AAR disputes Olin's contention that it is improper for the Board to 
try to incentivize parties to resolve their disputes through 
arbitration. Because the Board cannot require parties to arbitrate, AAR 
argues that it is entirely proper for the Board to identify ways of 
encouraging parties to volunteer for arbitration. AAR argues that this 
is not ``deal-making'' or ``trading away the FORR process,'' as Olin 
describes it. (AAR Reply 11.)
    Olin's characterization of the agency's approach is off the mark. 
Because 49 U.S.C. 11708(a) requires that any arbitration process 
offered by the Board be voluntary, any such process by its nature will 
always involve creating incentives for stakeholders to participate. The 
Board modified the arbitration program in 2013 to try to encourage 
greater use of the program. See Assessment of Mediation & Arb. Procs., 
EP 699, slip op. at 3 (STB served May 13, 2013) (``The changes to the 
Board's arbitration rules are intended to . . . encourage greater use 
of arbitration to resolve disputes before the Board by simplifying the 
process, identifying specific types of disputes eligible for a new 
arbitration program, and establishing clear limits on the amounts in 
controversy.''). Congress then modified the statutory arbitration 
requirements to try to expand the use of the arbitration process. See 
S. Rep. No. 114-52, at 7 (2015) (``To increase the efficiency of 
dispute resolution, S. 808 would expand existing work at the STB to 
encourage and provide voluntary arbitration processes.''). These 
efforts to make greater use of arbitration sought to create better 
incentives for stakeholder participation, just as the Board is doing 
here. So far, however, those efforts have not had the intended effect, 
as the current arbitration program has still gone unused for rate 
disputes. Accordingly, it is entirely appropriate for the Board to 
consider other means to incentivize stakeholder participation, 
including by granting carriers a FORR exemption.
c. The Board Will Oversee the Arbitration Process
    Olin further states that even though it does not oppose arbitration 
per se, the Board ``exists as an expert governmental agency chiefly in 
order to resolve disputes between railroads and shippers in a public, 
on-the-record manner.'' (Olin Comment 10.) But the establishment of 
this arbitration procedure is not inconsistent with the Board's role in 
resolving rate disputes through the adjudicatory process. Congress has 
given the Board statutory authority to resolve disputes using both 
adjudication and arbitration. As noted above, the Board favors use of 
alternative dispute resolution processes wherever possible and has had 
an arbitration process available to stakeholders since 1997. 
Additionally, as the Board stated in Arbitration NPRM, EP 765, slip op. 
at 10-11, any arbitration requirements must be consistent with 49 
U.S.C. 11708. The

[[Page 708]]

Board finds that there is no conflict between that statute and the 
final rule being adopted here.
d. Arbitration Is Not Overly Broad
    Olin argues that the language of the Board's proposed FORR 
exemption is unnecessarily broad. (Olin Comment 15-16.) Olin states 
that the carriers want a FORR exemption because they are concerned that 
the standard for appellate review of arbitration decisions by the Board 
would be limited, even in cases where the arbitration decision is based 
on a new methodology such as FORR. Olin argues that the more 
appropriate remedy would be to restrict the use of FORR solely in the 
context of an arbitration. (Id.) AAR objects to Olin's suggestion that 
the Board should replace the FORR exemption with a narrower prohibition 
on the use of final-offer processes in the arbitration program. (AAR 
Reply 12.)
    Olin's argument (and its proposal to prohibit arbitrators from 
using final-offer style procedures) is based on a misunderstanding of 
the purpose of the FORR exemption. In Arbitration NPRM, the Board 
explained that the aim of the FORR exemption was to incentivize 
railroads to participate. Arbitration NPRM, EP 765, slip op. at 14 
(``Creating a program in which carriers can obtain an exemption from 
any process adopted in the FORR docket in exchange for agreeing to 
arbitrate smaller rate disputes would incentivize railroads to 
participate, and, in turn, create a means for shippers to obtain 
resolution through arbitration.''). The FORR exemption was not proposed 
as a means to address railroad concerns about the narrow standard of 
appellate review. The Board addresses carrier concerns regarding the 
narrow standard for appeals as applied to the use of new methodologies 
in Part III.G, below.
e. Arbitration Is Not Intended To Avoid FORR Appeals
    NGFA notes the railroads have not pledged to forgo an appeal of the 
decision adopting FORR if they are exempt from FORR rules. (NGFA 
Comment 3 n.3.) However, the purpose of the FORR exemption was not to 
foreclose an appeal of the FORR decision. In fact, as noted in 
Arbitration NPRM, the Board acknowledges that an appeal of the FORR 
decision is likely, regardless of whatever features are contained in 
the arbitration process. The purpose of the FORR exemption is instead 
to incentivize railroad participation in the arbitration program.
f. Carriers Must Arbitrate if They Choose To Participate
    AFPM also argues that the RRTF advocated for mandatory arbitration, 
which this rule is not proposing, and that the Board should therefore 
adopt FORR instead of the arbitration program. (AFPM Comment 7.) 
However, as explained in this decision, if Class I carriers agree to 
participate in the new arbitration program, they are committing to do 
so for a five-year term with the right to withdraw only if there is a 
material change in law. As such, a Class I carrier that has opted into 
the new program could not refuse to participate in an arbitration if 
one is initiated against it.

C. Other Arbitration Program Fundamentals

1. Participation
a. Carrier Participation
    In Arbitration NPRM, the Board indicated that an important factor 
in its decision whether to adopt a new arbitration program would be a 
commitment from all of the Class I carriers to agree to participate in 
the arbitration program for a five-year term. Arbitration NPRM, slip 
op. at 9. The Board stated that an initial commitment from all Class I 
carriers would promote the goal that the shippers they serve have 
similar access to rate review procedures and certainty of carrier 
engagement.\15\ (Id.) No parties commented on this aspect of the 
Board's proposal.
---------------------------------------------------------------------------

    \15\ The Board noted that rate cases filed to date indicated 
that complainants' rate concerns relate primarily to Class I 
carriers. Arbitration NPRM, EP 765, slip op. at 9 n.15 (citing Final 
Offer Rate Rev., EP 755, slip op. at 16-17 (STB served Sept. 12, 
2019)).
---------------------------------------------------------------------------

    Providing shippers with access to the same avenues of rate relief 
against Class I carriers is important, particularly at the start of the 
arbitration program. If the Board were to adopt both processes but one 
turned out not to function as efficiently as the Board anticipates, 
shippers that are required to challenge rates under that process could 
perceive that they will be placed at a market disadvantage. The Board 
has concluded that fairness is best achieved by ensuring that shippers 
served by Class I carriers have access to the same avenues of rate 
relief as the new arbitration program begins. Although narrow 
circumstances may result in individual carriers withdrawing from the 
program after its start, requiring uniformity--at least at the 
beginning--provides the best chance of achieving this fairness. The 
final rule will therefore include the requirement that all Class I 
carriers agree to participate for the arbitration program to become 
operable.\16\
---------------------------------------------------------------------------

    \16\ Specifically, within the new regulations will be a 
requirement that the Board issue a written notice commencing the 
arbitration program. See App. A (49 CFR 1108.22(b)). The regulation 
will further provide that the Board may only issue this commencement 
notice if it has received opt-in notices from all of the Class I 
carriers. Id.
---------------------------------------------------------------------------

    As for Class II and III carriers, in Arbitration NPRM, the Board 
proposed that these carriers could participate on a case-by-case basis. 
Arbitration NPRM, EP 765, slip op. at 12.\17\ The Board also proposed 
that for rate challenges involving multicarrier shipments, all carriers 
participating in the movement must have opted into the arbitration 
process. Id. at 12-13. For multicarrier movements involving only Class 
I carriers, both carriers will have agreed, at least initially, given 
that the arbitration program will only become operative if all Class I 
carriers opt into the program. For multicarrier shipments involving a 
Class II or Class III carrier, those smaller carriers could agree to 
participate on a case-by-case basis (though, as noted, there is nothing 
that would prohibit such a carrier from also agreeing to participate 
for the same five-year term as the Class I carriers).\18\ No commenter 
addressed the issues of Class II and III carrier or multicarrier 
participation. Accordingly, the Board will include these provisions 
without modification as part of the final rule.
---------------------------------------------------------------------------

    \17\ However, the Board also noted that there was nothing in the 
proposed rule that would prohibit Class II and Class III carriers 
from also voluntarily participating for the same five-year term as 
Class I carriers would be required to do. Arbitration NPRM, EP 765, 
slip op. at 9 n.13.
    \18\ A Class II or Class III carrier may participate in a 
movement with a Class I carrier but not necessarily be or remain a 
defendant in rate disputes. See e.g., Total Petrochemicals USA, Inc. 
v. CSXT, NOR 42121 (STB served Jan. 21, 2011).
---------------------------------------------------------------------------

b. Carrier Opt-In Procedures
    The Board proposed in Arbitration NPRM that the Class I carriers 
that decide to participate for a five-year term must file an opt-in 
notice under Docket No. EP 765, which would be posted on the STB's 
website. Arbitration NPRM, EP 765, slip op. at 13. Arbitration NPRM 
also included regulatory text setting the proposed procedural 
requirements for filing the opt-in notice. Id., App. A (proposed Sec.  
1108.23(a)(1)). In particular, the Board proposed regulatory text 
stating that a carrier could file its opt-in notice ``at any time and 
[the notice] shall be effective upon receipt by the Board or at another 
time specified in the notice.'' Id., App. A (proposed Sec.  
1108.23(a)(1)).
    Joint Carriers state they are concerned that the Board suggested in 
Arbitration

[[Page 709]]

NPRM that the Board would not ``enact'' the arbitration proposal absent 
a commitment from all Class I carriers to agree to participate for a 
five-year term. They argue that requiring a commitment from Class I 
carriers prior to knowing what the final rule will entail would be 
inappropriate and contrary to basic principles of fairness. (Joint 
Carriers Comment 30-31.)
    The Board reiterates that it will not require carriers to commit to 
participate in the arbitration program before knowing the content of 
the final rule being adopted. See Joint Petition for Rulemaking to 
Establish a Voluntary Arbitration Program for Small Rate Disputes, EP 
765 et al., slip op. at 4 (STB served Dec. 29, 2021). To avoid 
confusion on this issue, the Board will amend the regulatory text to 
require each Class I carrier intending to participate to submit to the 
Board an opt-in notice within 20 days after the effective date of this 
decision. This will allow carriers a 50-day window to review the final 
rule and decide whether they want to voluntarily participate. As 
explained in the prior section, all Class I carriers must agree to 
participate for the arbitration program to become operable.
    The Board notes that, as a result of this change, Class I carriers 
will have only a limited opportunity--beginning immediately after this 
decision is issued--to decide whether to participate in the new 
arbitration program. In the original petition for rulemaking, most of 
the Class I carriers stated that an arbitration process would provide a 
better means of addressing concerns about the availability of rate 
reasonableness review for smaller rate cases than would FORR. (Pet. 1-
2; CP Letter 1.) As noted above, the Board agrees that alternative 
dispute resolution is generally preferrable to formal adjudication. 
Accordingly, the purpose of the 50-day window is to give Class I 
carriers the option to decide if they will voluntarily participate in 
the adopted arbitration program as an alternative to FORR. The duration 
of this window gives the carriers sufficient time to decide but also 
ensures that there is certainty for all stakeholders within a 
reasonable amount of time as to whether and when the new arbitration 
program will commence.
    Lastly, the Board notes that it will also adopt, without 
modification, the procedures for Class II and III carriers to 
participate on case-by-case basis as proposed in Arbitration NPRM. 
Arbitration NPRM, EP 765, App. A (proposed Sec.  1108.23(a)(4)).\19\
---------------------------------------------------------------------------

    \19\ Because this notice would be submitted by the shipper to 
the Class I carrier and the Board's Office of Public Assistance, 
Governmental Affairs, and Compliance (OPAGAC), a complainant will 
need to coordinate with the Class II or III carrier and determine if 
it wishes to participate in the arbitration.
---------------------------------------------------------------------------

c. Shipper Participation and Opt-In Procedures
    As proposed in Arbitration NPRM, the final rule will allow shippers 
to participate on a case-by-case basis. A shipper's participation is 
indicated by its submission of a copy of a written notice of its intent 
to arbitrate to the Class I carrier and OPAGAC. See infra Part III.A 
for additional explanation of these procedures.
2. Five-Year Term
    In Arbitration NPRM, the Board proposed that the arbitration 
program would last for a period of five years. The five-year period was 
based on a pre-NPRM pledge from the Petitioners to participate in the 
arbitration program for five years if the Board adopted their proposed 
arbitration program without changes. Arbitration NPRM, EP 765, slip op. 
at 9. As noted above, the Board has proposed modifications to the 
Petitioners' proposal to ensure that the program adequately addressed 
the Board's policy goals and because certain aspects were not feasible. 
Id. at 9-10. However, the Board retained the five-year period. The 
Board also proposed that it would conduct a programmatic review of the 
arbitration program ``upon the completion of a reasonable number of 
arbitration proceedings such that the Board can conduct a comprehensive 
assessment, though not later than three years after start of the 
program,'' at which point the Board would decide whether the program 
should continue or be terminated or modified. Arbitration NPRM, EP 765, 
App. A (proposed Sec.  1108.32).
    Joint Carriers claim that there is an inconsistency in Arbitration 
NPRM regarding whether the five-year term begins on the effective date 
of the program or the date on which the carrier files its opt-in 
notice. They suggest this be clarified so that the five-year term 
begins on the date that the carrier opts in. (Joint Carriers Comment 
29-30.) They also urge the Board to clarify what happens after the 
five-year term expires; specifically, that carriers remain in the 
arbitration program on an at-will basis (meaning that the carriers are 
in the program but can withdraw at any time for any reason). (Id. at 
30.) They suggest that the Board can consider whether another opt-in 
notice to continue the program beyond five years is needed or 
appropriate when it conducts the programmatic review. (Id.)
    NGFA notes that it appears that the FORR exemption would last 
beyond the initial five-year participation period (unless terminated by 
the Board). They argue that this could unfairly result in a scenario 
where the Board terminates the arbitration program after a period of 
years but allows carriers to continue being exempt from FORR 
challenges. (NGFA Comment 5.)
    AFPM supports the five-year term, provided it is paired with 
shippers having the option to challenge a rate using FORR. It states 
that the voluntary nature of the arbitration program and the lack of 
certainty beyond the initial five-year term reinforces the need for 
FORR. (AFPM Comment 5.)
    The Board will keep the initial participation period for the 
arbitration program at five years. However, given the confusion about 
when the five-year period begins and what happens at the end of this 
period, the Board will provide more specificity in the regulatory text. 
See App. A (49 CFR 1108.22(b), (c)). The regulations will now provide 
that the arbitration program formally commences upon a notice issued by 
the Board, and that such notice will only be issued if the agency 
receives opt-in notices from all Class I carriers. The five-year term 
of the arbitration program will then run from the date on which the 
commencement notice is issued. However, if the notice is not issued, 
the regulations being adopted here will not take effect and the 
arbitration program will therefore not begin. The FORR exemption will 
only commence upon the issuance of the Board's notice and will last 
only as long as the carrier participates in the arbitration program 
(i.e., until the Board terminates the program, the five-year term ends 
and the program is not renewed, or a carrier withdraws due to a 
material change in the law).
    In Arbitration NPRM, the Board did not elaborate on what happens at 
the end of the carriers' initial five-year period, other than to note 
that it would conduct a review of the proposed program no later than 
three years after start of the program, at which point, the Board may 
determine that the arbitration program will continue or that the 
arbitration program should be terminated or modified. Arbitration NPRM, 
EP 765, slip op. at 51. Based on the comments, the Board has decided 
that leaving this question unaddressed would create too much 
uncertainty for stakeholders. Moreover, if the program is successful, 
having such regulations

[[Page 710]]

already in place for the post-five-year period may avoid the need for 
the Board to initiate a new proceeding. Accordingly, the Board will 
amend the proposed regulatory text to provide for renewal of the 
arbitration program at the end of the initial five-year participation 
period, and for every five years after that. For renewal to occur and 
the arbitration program to remain in effect, the Board will require all 
existing Class I carriers to opt into the arbitration program for 
another five-year term. This requirement will apply even if one or more 
of the carriers have withdrawn during the initial five-year 
participation period due to a material change in the law (as discussed 
below). If all carriers once again choose to participate, as indicated 
by the filing of opt-in notices, and the arbitration program is 
renewed, the Class I carriers will remain exempt from FORR.
3. Withdrawal
a. Withdrawal Will Be Permitted If There Is a Material Change in Law
    The Board indicated that the carriers' ability to withdraw from the 
program should be narrow, as participation from all of the Class I 
carriers would be important to the success of the arbitration program. 
Arbitration NPRM, EP 765, slip op. at 11. Accordingly, the Board 
proposed that the only basis upon which a carrier could withdraw from 
the arbitration program would be if there is a material change in the 
law regarding rate reasonableness methodologies, subject to objection 
that would then be ruled on by the Board. Id. at 16-17. The Board also 
noted that its decision on whether to include a withdrawal right in the 
arbitration program would be influenced by whether there is a readily 
accessible small rate case review process as a backstop in the event a 
carrier is no longer participating in the arbitration program. The 
Board specifically sought comment on this issue. Id. at 12.
    No commenter specifically addressed whether carriers' right to 
withdraw should be contingent on the existence of another readily 
accessible rate review process to serve as a backstop. In any event, 
the issue is now moot because the Board is adopting FORR, which would 
serve as an additional regulatory backstop for similar types of small 
rate disputes. Accordingly, the Board will allow participating carriers 
to withdraw from the program if there is a material change in the law.
    However, the final rule will also specify that the termination or 
modification of any part of the FORR process, should it occur, will not 
be considered a change in law for which carriers can opt out. In 
Arbitration NPRM, the Board noted that it was proposing that adoption 
of FORR would not be considered a change in law. Arbitration NPRM, EP 
765, slip op. at 16. Because the Board today is also adopting FORR, 
that proposed provision is now moot. However, the carriers have 
indicated that FORR will likely be the subject of legal challenges. One 
benefit of the new arbitration program is that it will provide 
complainants with more certainty that they will have a more readily 
accessible rate relief process available at this time. That benefit 
would be defeated if Class I carriers could use the outcome of a legal 
challenge to FORR as a basis to withdraw from the arbitration program. 
To be clear, by agreeing to participate in the arbitration program, 
Class I carriers' commitment to arbitrate for a period of five years 
will be enforced, regardless of any potential changes to (or 
elimination of) FORR based on appellate litigation or any other reason.
b. Withdrawal Period
    Joint Carriers argue in their comment that the time proposed by the 
Board for carriers to indicate whether they intend to withdraw--10 days 
after an event that qualifies as a basis for withdrawal--is too short. 
They argue that, contrary to the Board's assertion in Arbitration NPRM, 
a decision to withdraw would not be made quickly. (Joint Carriers 
Comment 26.) They note there is no way of knowing how complex or 
lengthy such a material change could be and, therefore, a rushed 
decision might cause parties to withdraw who might otherwise have 
stayed in the program. (Id.) Accordingly, Joint Carriers request that 
the period be extended to 30 days. (Id. at 27.) No other parties 
commented on this aspect of Arbitration NPRM.
    The Board understands Joint Carriers' concern that 10 days may be 
too short a time-period to properly assess the impact of a material 
change in law. However, carriers should generally be aware of the 
potential for a change in law before such changes ultimately occur. 
Changes would either be through a Board decision, a court decision, or 
passage of a new law by Congress. These are actions that stakeholders 
as sophisticated and well-resourced as Class I carriers would have 
knowledge of in a timely manner. Additionally, the status of pending 
arbitrations will depend on whether carriers agree to remain in the 
program, so it is also important that this period of uncertainty not 
last longer than necessary. Accordingly, the Board will extend the 
period for carriers to decide whether to withdraw to 20 days.
c. Rulemakings That Constitute a Change in Law
    AFPM supports allowing railroads to withdraw due to a material 
change in the law, but it urges the Board to clarify what would 
constitute a material change. Specifically, it argues that the Board 
should identify which open rulemakings may be considered a material 
change. (AFPM Comment 6.) Under the language of the final rule, the 
right to withdraw would be triggered if there is a material change to 
the arbitration program itself, if there is a material change to the 
Board's existing rate reasonableness methodologies, or if a new rate 
reasonableness methodology is created. See App. A (49 CFR 1108.23(c).) 
\20\ For existing rate case methodologies, a change is more likely to 
be considered material if it involves a core component of an existing 
methodology; by contrast, a mere technical or procedural change to the 
methodology is less likely to be considered a material change. 
Additionally, a new procedure will not be considered a ``new rate 
reasonableness methodology'' unless it newly defines one or more 
criteria by which a rate can be shown to be unreasonable. For example, 
the Board currently has pending proceedings in Market Dominance 
Streamlined Approach, Docket No. EP 756; Report: Alternatives to URCS, 
Docket No. EP 771; and Review of Commodity, Boxcar, and TOFC/COFC 
Exemptions, Docket No. EP 704 (Sub-No. 1). Although these proceedings 
may affect certain ancillary aspects of a rate challenge, they do not 
define the criteria for rate reasonableness determinations and 
therefore do not involve the creation of new rate reasonableness 
methodologies. They also do not revise a core component of an existing 
methodology. Accordingly, any action the Board takes in these 
proceedings would not be considered a material change. The Board will 
not speculate on whether other proceedings would give rise to material 
changes, given that there are

[[Page 711]]

many different directions the Board may take in those cases.
---------------------------------------------------------------------------

    \20\ Joint Carriers note that there is a drafting error in the 
proposed regulations (specifically, 49 CFR 1108.23(c)(1)), which 
states that a change in law results only from Board actions, despite 
the fact that the Board stated in the body of Arbitration NPRM that 
changes could result from Congressional or judicial action. (Joint 
Carriers Comment 26 (citing Arbitration NPRM, EP 765, slip op. at 16 
n.31). The Board agrees that this language should be modified to 
broaden the scope of actions that can constitute a material change 
in law. By removing reference to material changes made by ``the 
Board,'' the language now allows for material changes as a result of 
Board, Congressional, or judicial action.
---------------------------------------------------------------------------

Impact of Carrier Withdrawal on the Arbitration Program
    As noted, the final rule being adopted here will require that all 
Class I carriers participate in the arbitration program as a 
prerequisite to the program becoming effective. However, the Board has 
decided that it will allow the arbitration program to continue if one 
or more carriers choose to withdraw from the program due to a material 
change in the law--though carriers that withdraw will lose their 
exemption from FORR. The Board has stated that ensuring shippers have 
similar access to rate review procedures is important, particularly at 
the outset of the program. See supra Part I.C.1.a. However, the 
likelihood that there is a material change in the law during the 
initial five-year period is relatively low. In any event, once the 
arbitration program has been established and the Board and stakeholders 
have some familiarity with the process, the Board will be more likely 
to know if the program is working as intended. Accordingly, its 
concerns about fairness in access to rate relief notwithstanding, the 
Board will allow the arbitration program to continue if one or more 
Class I carriers decides to withdraw based on a change in law. If there 
is a material change in the law that causes most of the Class I 
carriers to withdraw from the program, the Board can always reassess 
whether continuation of the program is still warranted.

Part II--Arbitration Case Limits

A. One Case per Shipper Limit

    In Arbitration NPRM, the Board proposed that complainants be 
permitted to initiate only one arbitration per railroad at a time. 
Arbitration NPRM, EP 765, slip op. at 19. The Board provided several 
reasons for this proposed limit. First, it would prevent complainants 
from improperly disaggregating related rate challenges into smaller, 
individual claims. Second, it would ensure that no one complainant 
pursued so many arbitrations as to delay other complainants from 
pursuing arbitrations under the 25-case/12-month limit (discussed in 
the following section). Third, it would allow the Board and 
stakeholders to develop familiarity with the arbitration process 
gradually. The Board noted that complainants could bring arbitrations 
against multiple carriers simultaneously, that they could challenge 
multiple rates within a single arbitration (subject to the relief cap), 
and that the Board's existing formal rate reasonableness procedures 
remain available for those complainants that want to bring multiple 
rate challenges.
    Coalition Associations argue this limit should be removed because 
it will foreclose shippers with multiple unreasonable rates from timely 
access to rate review. They note that shippers negotiate rates for 
multiple lanes simultaneously and that a one-case limit will force 
complainants to either aggregate claims (thus obtaining less relief on 
a per-lane basis) or pay higher rates that cannot be challenged. 
(Coalition Ass'ns Comments 11-12.) Coalition Associations also note 
that shippers that delay bringing additional rate challenges under the 
arbitration process will have to continue paying the higher rate during 
the delay. (Id. at 12.)
    They contend that the one-case limit also creates an incentive for 
carriers to seek higher rate increases in negotiations when they know 
the complainant is engaged in a pending arbitration. (Id.) These 
concerns, they argue, are more insidious than the Board's concern about 
disaggregation of rate claims. (Id. at 13.) Coalition Associations also 
dispute many of the other reasons stated by the Board as to why the 
one-case limit is needed. (Id. at 13-14.)
    IMA-NA and Indorama state that they also do not support the one-
case-per-complainant limit. They state that this limit would constrain 
shippers' ability to challenge rates, given their view that the Board's 
other existing rate case procedures are ineffective. (IMA-NA Comment 
17-18; Indorama Comment 17-18; see also Coalition Ass'ns Comment 14.) 
IMA-NA and Indorama note that there is no such limitation in the 
proposed FORR process. (IMA-NA Comment 17; Indorama Comment 17.) AFPM 
argues that the one-case limit would be yet another reason to not 
exempt railroads who participate in the voluntary program from FORR. 
(AFPM Comment 7.) It states that shippers should be able to bring 
multiple arbitrations so long as the lines at issue do not share 
facilities. (Id.) Like IMA-NA and Indorama, AFPM also argues that the 
Board's reasoning that such complainants have other avenues available 
to them is counter to the Board's finding that the existing mechanisms 
have proven unworkable. (Id.) AFPM proposes that if the Board adopts 
the one-case limit, it should allow complainants to bring subsequent 
rate challenges using FORR. (Id.)
    Joint Carriers and AAR argue that the one-case-per-complainant 
limit is needed to prevent improper disaggregation of cases and, as the 
Board recognized, preventing a single shipper from using all the 
capacity under the 25-case/12-month limit. (Joint Carriers Reply 16-17; 
AAR Reply 13-14.) AAR states that several of the shipper interests 
admit in their comments that they want to bring multiple arbitrations 
concurrently against the same carrier, which could lead to improper 
disaggregation of cases, and so the one-case limit is necessary. (AAR 
Reply 13-14.)
    While the one-case-per-shipper limit would prevent improper 
disaggregation of cases that should be brought as a single case into a 
number of smaller arbitrations, the Board agrees with the shipper 
interests that the delays it could create are equally, if not more, 
problematic. As Coalition Associations note, if a shipper challenging a 
rate through arbitration is charged additional rates that it believes 
are unreasonable, the shipper could not use arbitration until the 
initial arbitration is resolved. Once a carrier is aware of that 
situation, the carrier could be more aggressive in rate negotiations or 
even consider imposing a short-term rate increase while the arbitration 
is pending, especially if the carrier believes that the shipper is 
unlikely to use one of the available rate methodologies. Accordingly, 
the Board will remove the one-case per shipper limit from the final 
rule.
    In Arbitration NPRM, the Board perceived that the one-case per 
shipper limit was needed to ensure that more shippers have the 
opportunity to participate in the arbitration program given the 25-
case/12-month cumulative case limit the Board was also imposing. 
Arbitration NPRM, EP 765, slip op. at 19. As noted in the following 
section, the Board is modifying that cumulative case limit so that it 
is now set at 25 cases simultaneously. As a result of this 
modification, there is less need for the one-case limit to guard 
against a shipper or small group of shippers from dominating the 
arbitration program to the exclusion of other shippers. The Board also 
briefly noted in Arbitration NPRM that the one-case limit would allow 
the Board and stakeholders to develop familiarity with the arbitration 
process gradually. Arbitration NPRM, EP 765, slip op. at 19. However, 
the importance of that goal is outweighed by the problems that the 
shipper interests have explained would be created by the one-case 
limit.
    In addition, the purpose of this rulemaking is to make rate relief 
more accessible to shippers with small disputes. As explained above, 
carriers that participate in the arbitration program will be exempt 
from FORR challenges during the period of

[[Page 712]]

participation. If the Board were to also impose the one-case limit, 
shippers' improved access to rate relief would be limited to just one 
case at a time. The Board noted in Arbitration NPRM that the shippers 
most likely to use the arbitration process would be those that are less 
likely to have multiple rates they wish to challenge. In retrospect, 
however, the one-case limit could put those shippers that do have 
multiple rates that they believe are unreasonable in an unfair 
position. If a shipper has two rates from the same carrier that are 
both creating economic hardship, the shipper should not be forced to 
choose between arbitrating the one dispute but using a less accessible 
formal rate case process for the other (particularly if the amount in 
dispute is disproportionate to the cost of bringing a formal case).
    However, the Board agrees that, without the one-case limit, there 
needs to be some safeguard against the possibility of complainants 
improperly disaggregating claims. Accordingly, as part of the final 
rule, the Board will mandate that a complainant may not bring separate 
arbitrations for traffic with the same origin-destination or shipments 
where facilities are shared. The Board proposed this alternative in 
Arbitration NPRM. Arbitration NPRM, EP 765, slip op. at 20. Aside from 
AFPM, which supported the idea, (AFPM Comment 7), no other party 
addressed it. The Board finds that it would serve as a sufficient means 
to prevent improper disaggregation. Under this restriction, an 
arbitration complainant could challenge a rate for traffic moving on 
one part of the defendant carrier's system and also challenge a rate 
from an entirely different part of the carrier's system. This ``shared 
facilities'' standard serves as a rough proxy of how a complainant 
would challenge separate rates in formal cases. Specifically, it is 
less likely that a complainant would challenge two shipments that do 
not share facilities as part of single rate case. Accordingly, the 
Board will impose this restriction in the final rule.

B. 25-Case/12-Month Case Limit

    At the urging of Petitioners, the Board limited the number of 
arbitrations that could be brought against an individual rail carrier 
to 25 cases within a 12-month time period. Arbitration NPRM, EP 765, 
slip op. at 18. However, rather than allowing carriers to withdraw once 
this limit was reached (as Petitioners had proposed), the Board 
proposed that any excess arbitrations would be postponed until such 
time as the carrier is once again below the 25-cases within a 12-month 
time period limit. Id.\21\ The Board reasoned that participation in 
Board-sponsored arbitration is voluntary, as required under 49 U.S.C. 
11708, and because this program would be new, it is reasonable that a 
carrier who has agreed to participate for a term of years only be 
required to arbitrate a certain number of cases. Id.
---------------------------------------------------------------------------

    \21\ Additionally, the Board proposed that cases would only 
count toward the 25-case/12-month limit if the parties actually 
reach the arbitration phase of the process (i.e., after the Joint 
Notice has been filed). Arbitration NPRM, EP 765, slip op. at 18. 
The Board also proposed that carriers would be responsible for 
monitoring the number of arbitrations that are brought and for 
informing OPAGAC if the limit was reached, at which point OPAGAC 
would confirm and notify shippers whose arbitrations must be 
postponed. Id.
---------------------------------------------------------------------------

    Coalition Associations oppose the 25-case/12-month limit. They 
argue that, by requiring shippers to queue up to arbitrate against the 
carrier on a first-come/first-serve basis, shippers would incur 
unpredictable and costly delays. (Coalition Ass'ns Comment 15.) 
Coalition Associations also argue that if the arbitration process is 
confidential, shippers would not know if an arbitration would be 
postponed when they initiate the process, nor would they know how long 
they would have to wait until the arbitration can begin. Moreover, they 
argue that the shipper will have to continue paying the unreasonable 
rate during the delay. (Id.) They state that, in contrast, a carrier 
will know when a case would be delayed, which in turn will give the 
carrier an advantage in negotiations for other rates. (Id. at 15-16.) 
Coalition Associations argue that the Board's concern that carriers 
will be inundated with arbitrations does not justify this prejudicial 
impact on shippers. Additionally, they argue that the Board cites no 
evidence that a high number of cases is even likely, particularly since 
shippers have little incentive to arbitrate borderline cases. (Id. at 
16.)
    AFPM states that it supports the 25-case/12-month limit, but it 
suggests the Board closely monitor this cap to see if it needs to be 
adjusted in the future. (AFPM Comment 6.)
    Joint Carriers oppose removing the 25-case/12-month limit. They 
argue that they do not have unlimited resources and so they will not 
voluntarily put themselves in a position where they could potentially 
be overwhelmed by too many arbitrations at one time. (Joint Carriers 
Reply 16.) They argue that this case limit is reasonable given that 
there are thousands of rail customers. (Id.)
    As with the one-case limit, the Board agrees that the shipper 
interests have raised valid concerns about the delays that could be 
created under the 25-case/12-month limit. For example, if 25 
arbitrations were brought within the first month after the program 
becomes effective and all the arbitrations were concluded after four 
months, a potential complainant whose arbitration exceeds the limit 
would need to wait an additional eight months before its case could 
proceed--even though the carrier would not be handling any pending 
arbitrations during this time. However, the new arbitration program 
entails a process that will be new and untested; as such, the Board 
finds that it is reasonable to limit the number of arbitrations to 
which rail carriers are subject until the Board and stakeholders have a 
practical understanding of how well the program works.
    To balance both the carriers' and shippers' concerns, the Board 
will adopt a 25-case limit, but it will remove the 12-month component. 
Without the 12-month component, Class I carriers participating in the 
arbitration program will be subject to no more than 25 arbitration 
cases simultaneously. The Board finds that this modification should 
address the shipper interests' concern about the delays that the 25-
case/12-month limit would create because it is unlikely that an 
arbitration will ever have to be placed in abeyance under the revised 
limit. And, even if a case has to be placed in abeyance, the delay 
should be minimal--the complaint would only have to wait until one of 
the 25 pending arbitrations is completed before its case could 
proceed.\22\ Although not at the level they wish, the limit of no more 
than 25 arbitrations simultaneous should provide the carriers some 
protection against an excessive number of cases.
---------------------------------------------------------------------------

    \22\ The Board will add language to the regulation that 
specifies that an arbitration is considered final for purposes of 
the 25-cases-simultaneously limit when the arbitration panel issues 
its arbitration decision, or when an arbitration is dismissed or 
withdrawn, including due to settlement. In other words, cases that 
are on appeal to the Board or to a court will not be counted toward 
the case limit. This is consistent with language that the Board 
included for the one-case limit in Arbitration NPRM. Arbitration 
NPRM, EP 765, slip op. at 19 n.36 & App. A (proposed Sec.  
1108.24(c)). In addition, the Board will remove the definition of 
``Pending arbitrations'' from the list of definitions in 49 1108.21, 
as it will avoid any potential confusion on this issue and is 
otherwise not necessary.
---------------------------------------------------------------------------

C. Joint Carriers' Proposed Simultaneous Case Limit

    In the petition for rulemaking, Petitioners proposed allowing 
carriers to withdraw from the arbitration program if they were subject 
to 10 simultaneous arbitrations. The Board, however, did not propose 
this as a feature of the program in Arbitration NPRM. The Board found 
such an occurrence

[[Page 713]]

unlikely and that the other case limits would be sufficient protection 
against carriers being inundated with cases. Arbitration NPRM, EP 765, 
slip op. at 18.
    Joint Carriers urge the Board to reconsider including this limit in 
the final rule. They argue that the one-case-per-shipper and 25-cases/
12-month limits do not sufficiently protect carriers from ``being 
overwhelmed by a high number of arbitrations, all with expedited 
schedules.'' (Joint Carriers Comment 27.) However, Petitioners now 
propose that the limit result in postponement of cases, rather than 
triggering a withdrawal right. (Id. at 27-28.)
    In response, Coalition Associations argue that postponing cases 
above a 10-simultaneous-case limit would place shippers at a 
disadvantage. For one, it would increase the costs to shippers whose 
cases are postponed, particularly since the shipper would be paying the 
challenged rate while waiting for its arbitration to proceed. 
(Coalition Ass'ns Reply 24.) They argue that this delay would put 
pressure on shippers to settle claims, due to the fact that the 
railroad's conduct has led to multiple claims against it. (Id.) 
Coalition Associations also argue that this limitation is not necessary 
to encourage railroads to participate, as the arbitration program would 
offer other benefits to railroads. (Id.) Lastly, they note that there 
is no corresponding cap on FORR cases. (Id.)
    The Board appreciates Joint Carriers' concern about having 
sufficient resources to handle simultaneous arbitrations. However, 
there is no limit on the number of rate cases that can be brought 
against a carrier, so a carrier could just as easily be subject to the 
same number of rate cases as arbitrations. The Board acknowledges that, 
because the new arbitration process should be less time-consuming and 
less costly than a formal rate case, shippers may bring more challenges 
through the arbitration process than they otherwise would through 
formal cases. But that would indicate that the arbitration process is 
providing shippers with better access to potential rate relief, which 
is the goal of this proceeding. In other words, if the reason carriers 
today are subject to very few rate cases is that the formal rate case 
processes are too costly to be worth pursuing, that is not a 
justification for protecting them from a somewhat larger number of 
challenges under the arbitration program as well. Finally, in the event 
that there are a greater number of arbitrations than the Board 
anticipates that create concerns about the fairness of the program, it 
will stand ready to take appropriate action.
    The Board acknowledges that in Arbitration NPRM it stated that the 
existence of the one-case-per-carrier and the 25-cases/12-month limit 
made the need for the 10-simultaneous-case limit unnecessary, but here, 
the Board is discarding one of those limits and loosening the other. 
Arbitration NPRM, EP 765, slip op. at 18. However, the limit of no more 
than 25 arbitrations simultaneously should provide the carriers some 
protection against an excessive number of cases.

Part III--Arbitration Program Procedural Requirements

A. Pre-Arbitration Procedures and Timelines

    As proposed by the Board, the arbitration process under the new 
program would begin with the shipper submitting a copy of a written 
notice of its intent to arbitrate (Initial Notice) to the rail carrier 
and OPAGAC (though OPAGAC would not be permitted to share this 
information outside of that office). See Arbitration NPRM, EP 765, slip 
op. at 20-21 (setting forth the proposed requirements for the Initial 
Notice). The parties would then have the option to mediate if both 
parties agreed to do so, but mediation would not be required if one or 
both parties choose not to mediate. The mediation period would be for 
30 days and be arranged by the parties; the Board would not appoint a 
mediator or otherwise oversee the mediation. See id. at 21-22. If 
mediation is unsuccessful, or if the parties choose not to mediate, 
they would jointly submit a second notice (Joint Notice) to OPAGAC and 
the Office of Economics (OE) (submission to OE would allow that office 
to begin compiling the Waybill data that is automatically provided to 
the complainant). See id. at 22-23 (setting forth the proposed 
requirements for the Joint Notice). The only comments on these aspects 
of the Board's proposal pertained to mediation. Because no commenters 
addressed the Initial Notice and Joint Notice requirements, they will 
be included in the final rule.
    NGFA and AFPM support the Board's proposed mediation provisions, 
with AFPM stating that it will allow parties to avoid unnecessary 
delays for disputes that are clearly not likely to be resolved through 
mediation. (NGFA Comment 8-9; AFPM Comment 8.) However, Joint Carriers 
argue that the Board should require brief mediation before the actual 
arbitration phase, unless both parties mutually consent to forgo it. 
(Joint Carriers Comment 28.) They argue that the Board's concern that 
mandatory mediation would discourage shippers from using the 
arbitration program is unlikely and, in any event, is outweighed by the 
minimal cost and time of mediation. (Id. at 29.) BNSF also argues that 
mediation should be mandatory before the actual arbitration phrase. It 
states that, in its experience, most successful arbitrations are 
resolved prior to the arbitration and the Board's focus on the timing 
of mediation unduly minimizes the potential for settlement that 
mediation would bring. (BNSF Comment 3-4.) AAR also urges the Board to 
build in a mandatory mediation period, arguing it would be consistent 
with the Board's stated preference for private-sector solutions. (AAR 
Comment 6.)
    Coalition Associations take issue with Joint Carriers' insistence 
on mandatory mediation. They argue that it would increase costs on 
shippers and lengthen the procedural schedule by 25%, during which time 
the shipper would be subject to the challenged rate. (Coalition Ass'ns 
Reply 22-23.) Coalition Associations also argue that allowing parties 
to forgo mediation upon mutual consent is not helpful because it causes 
delay and, therefore, it is unlikely a railroad would ever consent to 
opt out. (Id. at 23.) Lastly, Coalition Associations note that the 
American Arbitration Association allows parties to opt out of mediation 
unilaterally and that JAMS \23\ does not require mediation as a 
precondition to arbitration. (Id.)
---------------------------------------------------------------------------

    \23\ According to the JAMS website, it ``is the world's largest 
private alternative dispute resolution (ADR) provider.'' See 
www.jamsadr.com/about/.
---------------------------------------------------------------------------

    The Board will deny the requests from rail carriers to make 
mediation mandatory. Although the Board requires parties to mediate 
under its other rate case processes, the goal of arbitration is to 
create a process that is particularly expeditious and less costly than 
existing processes. Despite carriers' assertion, the time and expense 
of engaging in mediation is not insignificant (particularly since it 
would be the parties, not the Board, providing the mediator). By not 
requiring mediation as part of the arbitration process, the Board will 
give parties the option to decide whether they want to mediate before 
arbitrating their rate dispute.
    The Board recognizes that, although it is not requiring mediation 
here, it is requiring it for FORR cases. See FORR Final Rule, EP 755, 
slip op. at 25. While mediation can be a useful exercise, there is a 
fair degree of similarity between the mediation and arbitration 
processes. Accordingly, the Board concludes it is reasonable to allow 
parties to elect to

[[Page 714]]

bypass mediation here and proceed directly to arbitration.
    The Board notes that if a carrier genuinely believes that mediation 
would be beneficial, it is free to speak directly with the complainant 
and encourage the complainant to participate in mediation.\24\ 
Coalition Associations briefly note that if a complainant is forced to 
participate in mediation, it ``increases the financial stakes for 
shippers without a corresponding increase for railroads.'' (Coalition 
Ass'ns Reply 23.) Carriers are free to agree to extend the relief 
period for the length of time that the parties are engaged in mediation 
to incentivize a shipper to participate in mediation (though not longer 
than the statutory maximum of five years).
---------------------------------------------------------------------------

    \24\ The Board is modifying the language proposed in Arbitration 
NPRM relating to when mediation is initiated. In particular, the 
Board is deleting a sentence that stated that mediation would be 
``initiated'' by the submission of the Initial Notice, as the Board 
intends that parties should discuss the possibility of mediation 
after the Initial Notice is submitted. If there is agreement to 
mediate, the regulations provide that the parties must schedule 
mediation promptly and in good faith.
---------------------------------------------------------------------------

B. Arbitration Panel Selection

    In Arbitration NPRM, the Board proposed adopting the Petitioners' 
idea of a panel made up of two arbitrators--one appointed by each 
party--and a lead arbitrator chosen by the parties jointly. Arbitration 
NPRM, EP 765, slip op. at 24. For the party-appointed arbitrators, the 
Board proposed allowing parties to select arbitrators ``without 
limitation,'' including individuals not on the agency's roster. The 
Board noted, however, that arbitrators must perform their duties with 
``diligence, good faith, and in a manner consistent with the 
requirements of impartiality and independence'' and proposed allowing 
each side to object to the other side's selection, with for-cause 
objections that would be ruled on by an ALJ. Id. at 24-25. No party 
commented on this aspect of the Board's proposal. Accordingly, it will 
be included in the final rule.
    As for the lead arbitrator, the Board proposed that the two party-
appointed arbitrators would make a selection from a joint list provided 
by the parties but, if the arbitrators are unable to agree, that they 
shall select from the Board's roster using the alternate-strike method 
(as set forth in Sec.  1108.6(c)). The Board did not propose requiring 
the lead arbitrator to meet any qualification requirements (as is 
required for individuals wanting to be on the Board's arbitration 
roster), but it did request parties to comment on whether there should 
be such a requirement.
    Both Joint Carriers and AAR object to requiring the party-appointed 
arbitrators to select the lead arbitrator from the Board's roster when 
there is disagreement. Joint Carriers argue that the roster is too 
small a pool, while AAR argues that selecting from the roster is 
problematic because it favors whichever side is more represented on the 
roster. (Joint Carriers Comment 20; AAR Comment 7.) Accordingly, Joint 
Carriers and AAR propose that an ALJ select the lead arbitrator when 
there is disagreement. (Joint Carriers Comment 20; AAR Comment 7.) 
Joint Carriers specifically propose the ALJ select from a joint list 
submitted by the parties, in which each party would select three 
arbitrators for a total of six arbitrators,\25\ and that the ALJ should 
be guided by the qualification requirement of 49 CFR 1108.6(b). (Joint 
Carriers Comment 20-21.) \26\ They note that relying on an ALJ would 
also be consistent with the process proposed by the Board for resolving 
disputes over party-appointed arbitrators. (Id. at 20.)
---------------------------------------------------------------------------

    \25\ Joint Carriers state they would also accept a proposal that 
the list include more than six arbitrators, but the Board should not 
require fewer than six. (Joint Carriers Comment 20-21 n.41.)
    \26\ Under 49 CFR 1108.6(b), persons on the Board-maintained 
roster must be individuals ``with rail transportation, economic 
regulation, professional or business experience, including 
agriculture, in the private sector,'' and ``must have training in 
dispute resolution and/or experience in arbitration or other forms 
of dispute resolution.''
---------------------------------------------------------------------------

    Coalition Associations oppose the idea of having an ALJ select the 
lead arbitrator from a list generated by the parties. They propose that 
the parties generate a list, but instead of having the ALJ select the 
lead arbitrator, the parties use the alternating-strike method. They 
argue this would allow parties to have more control over the selection 
of the lead arbitrator, as opposed to an ALJ who would likely be 
unfamiliar with the individuals on the list. (Coalition Ass'ns Reply 
26-27.) Finally, AFPM argues that the lead arbitrator should meet the 
49 CFR 1108.6 qualifications, particularly since the panel will have to 
make a determination on market dominance. (AFPM Comment 8.)
    The Board will require that any individuals on the list meet the 
qualification requirements of 49 CFR 1108.6(b). In particular, the 
Board will require the lead arbitrator to be a person ``with rail 
transportation, economic regulation, professional or business 
experience, including agriculture, in the private sector,'' and that 
has ``training in dispute resolution and/or experience in arbitration 
or other forms of dispute resolution.'' 49 CFR 1108.6(b). Such a 
requirement will ensure that the lead arbitrator will be able to carry 
out his or her responsibilities for handling evidentiary matters and 
that the panel will have addressed the appropriate legal criteria in 
reaching its decision.\27\
---------------------------------------------------------------------------

    \27\ Joint Carriers oppose the qualification requirement of 49 
CFR 1108.6(b) applying to party-appointed arbitrators. (Joint 
Carriers Comment 21 n.42.) The Board confirms that the qualification 
requirement will not apply to party-appointed arbitrators. Compare 
49 CFR 1108.6(b) (requiring that, for the existing arbitration 
program, all individuals on the arbitration panel must meet the 
qualification requirement).
---------------------------------------------------------------------------

    Commenters all oppose selecting from the Board-maintained roster in 
situations where parties cannot agree on a lead arbitrator. 
Accordingly, the Board will modify the final rule to instead allow the 
parties to develop a joint list. To develop the joint list, the Board 
will require each side to include the names of three individuals who 
meet the qualification requirement of 49 CFR 1108.6(b). Both sides will 
then be permitted to strike the names of two individuals proposed by 
the opposing side. The parties will then contact the Director of 
OPAGAC, who shall select from the two remaining names using a random 
selection process. The Board finds using this method of selecting the 
lead arbitrator would be easier and faster than relying on an ALJ or 
other substantive decisionmaker. While this approach has certain 
advantages, the Board acknowledges that selection approaches that do 
not rely on the roster, which commenters uniformly opposed, also have 
certain built-in incentives that may be disadvantageous.

C. Record-Building Procedure

1. Procedural Schedule
    Under 49 U.S.C. 11708(e)(2), ``[t]he evidentiary process of the 
voluntary and binding arbitration process shall be completed not later 
than 90 days after the date on which the arbitration process is 
initiated unless--(A) a party requests an extension; and (B) the 
arbitrator or panel of arbitrators, as applicable, grants such 
extension request.'' The Board proposed that the arbitration program 
would have a 90-day evidentiary phase composed of a 45-day discovery 
sub-phase and a 45-day sub-phase for submission of pleadings or 
evidence (beginning from the formal commencement of the arbitration 
phase). Arbitration NPRM, EP 765, slip op. at 27-28. Under the Board's 
proposal, the arbitration panel could extend the discovery sub-phase 
upon request (even if only sought by one party), but such extensions 
would not automatically result in a corresponding extension of the 
``submissions'' sub-phase (unless the parties agreed to extend the 
submissions

[[Page 715]]

sub-phase as well). The Board stated in a footnote that its 
``expectation [is] that the arbitration panel will grant such 
extensions only in extraordinary circumstances and should attempt to 
adhere to the 90-day default evidentiary period set forth in the 
statute to the greatest extent practicable.'' Arbitration NPRM, EP 765, 
slip op. at 28 n.44. However, that extraordinary circumstances standard 
was not included in the regulatory text. As for how evidence would be 
submitted, the Board proposed that the arbitration panel would set 
forth the schedule and format for the presentation of evidence, 
allowing for principles of due process. (Id.)
    AAR proposes that there should be a full 45-day submission sub-
phase, even if the discovery period is extended. (AAR Comment 7.) It 
argues that a party is equipped to weigh the benefit of seeking 
additional discovery against the risk that the proceeding will be 
extended. (Id. at 8.) AAR states that, because the pleadings are 
informed by discovery, the Board should not diminish the timeframe for 
submitting pleadings because of the need for additional discovery. 
(Id.)
    Coalition Associations argue that the arbitration proposal has a 
longer evidentiary phase than the FORR SNPRM proposal (90 days versus 
59 days). They argue that this longer schedule will increase the costs 
for parties in arbitration because it will give parties more time to 
prepare evidence, resulting in higher attorneys' fees and other costs. 
(Coalition Ass'ns Reply 10.) Coalition Associations also dispute the 
assertion by Joint Carriers that arbitration will be less formal and 
subject to ``hardball advocacy,'' and therefore less costly. (Id.) AFPM 
states that it does not object to the proposed procedural schedule. 
(AFPM Comment 10.)
    Upon further consideration, the Board will modify the final rule so 
that it is left to the arbitration panel's discretion whether to extend 
the submission sub-phase upon an extension of the discovery sub-phase 
and, if so, for how long. The arbitration panel will be in the best 
position to weigh whether an extension of the discovery period warrants 
an extension of the submission sub-phase, based on input from the 
parties.\28\ Such a rule is also consistent with 49 U.S.C. 11708(e)(2).
---------------------------------------------------------------------------

    \28\ The arbitration panel need not extend the submission sub-
phase for the same length of time as the extension of the discovery 
sub-phase. For example, if the arbitration panel extends discovery 
by 15 days, it may decide that an extension of the submission sub-
phase of only 10 days is sufficient.
---------------------------------------------------------------------------

    Coalition Associations' argument that the longer schedule in 
arbitration relative to FORR will increase costs for litigants is 
overstated. As described above, arbitration is an inherently efficient 
process. There is no certain mechanism to determine whether a 
particular arbitration would be more expensive than a particular 
proceeding under FORR. And, as discussed above, the regulations will 
allow parties to request, and the arbitration panel to adopt, 
procedures that are more efficient or less costly. In addition, the 
discovery limits--discussed in the following section--will require 
parties to streamline their litigation strategy.
2. Discovery Limits
    The Board proposed that each side be allowed 20 written document 
requests, five interrogatories, and no depositions. However, the Board 
invited comment on whether the limits should be raised in cases where 
the non-streamlined market dominance approach is used. The Board also 
proposed that the lead arbitrator be responsible for managing 
discovery. Arbitration NPRM, EP 765, slip op. 28-29.
    IMA-NA, Indorama, and Coalition Associations do not support limits 
on discovery. They argue that, because railroads generally control most 
of the information needed to bring a case, these limitations will have 
a disproportionately adverse effect on complainants. They argue that 
this, in turn, could deter shippers from using the arbitration program, 
particularly if they feel a case requires more information than it can 
obtain under these limited discovery procedures. They also note that 
there are no such discovery limitations in FORR. (IMA-NA Comment 18; 
Indorama Comment 18; Coalition Ass'ns Reply 9.) AFPM does not object to 
the discovery limits, though it notes that the proposed limits may need 
to be higher for cases in which the non-streamlined market dominance 
approach is used. (AFPM Comment 10.)
    The discovery limits are a key feature of the arbitration program 
because they will ensure that parties streamline their requests and 
that the process does not become overly costly or time-consuming. 
Although the shipper interests argue that shippers require more 
discovery in rate cases than do carriers, they do not claim that the 
limited discovery proposed by the Board would be insufficient for 
purposes of obtaining the evidence needed to present a case to the 
arbitration panel. However, in response to the concern from the shipper 
interests that the discovery limits may be too restrictive, the Board 
will modify the final rule to allow parties to make requests for 
additional interrogatories and documents, which the lead arbitrator can 
grant for exceptional circumstances. This will allow parties to obtain 
additional discovery in cases where it is warranted. In addition, the 
limits proposed in Arbitration NPRM did not account for the additional 
discovery that may be needed when a complainant uses a non-streamlined 
market dominance analysis. See Arbitration NPRM, EP 765, slip op. at 
28. Accordingly, the Board will modify the final rule so that each 
party receives an additional three interrogatories and three document 
requests if a defendant carrier does not concede market dominance and 
the complainant elects to use a non-streamlined market dominance 
analysis.
3. Waybill Data
    As part of the proposed small rate case arbitration program, the 
Board proposed that each party automatically receive the confidential 
Waybill data of the defendant carrier for the preceding four years, as 
in Three-Benchmark cases. Arbitration NPRM, EP 765, slip op. at 29. In 
addition, the Board proposed that the released Waybill data be limited 
to movements at the same 5-digit STCC as the commodity at issue, but 
that complainants could request Waybill data beyond four years, beyond 
the 5-digit STCC, or for non-defendant carriers, by filing a request 
with the Director of OE under 49 CFR 1244.9(b)(4). Id. at 29-31.\29\ 
The Board reasoned that these limits would balance the needs of parties 
in an arbitration against the goal of maintaining the confidentiality 
of the Waybill Sample. (Id. at 30.)
---------------------------------------------------------------------------

    \29\ The Board also proposed that the Director of OE provide the 
data to the parties within seven days, that both parties and 
arbitrators must sign a confidentiality agreement before any Waybill 
data is released, and that the Waybill data cannot be obtained 
through discovery. Arbitration NPRM, EP 765, slip op. at 29-31.
---------------------------------------------------------------------------

    Coalition Associations argue the scope of Waybill data to be 
released should be expanded to include all rail carriers and 
commodities, as ``commodities can have comparable transportation 
characteristics at higher STCC levels and transportation 
characteristics can be similar across railroads.'' (Coalition Ass'ns 
Comment 18.) They also claim that the Board permits four years of 
Waybill data in Three-Benchmark cases without restricting the data to 
specific commodities. (Id. at 17.) Coalition Associations also note 
that the Board proposed no carrier or commodity

[[Page 716]]

restrictions on access to Waybill data in FORR and that there is no 
reason that Waybill access in arbitration should be more limited than 
it is for FORR. (Id.) Finally, they also raise a number of concerns 
about the process by which parties would have to seek additional 
Waybill data from the Director of OE. (Id. at 18-19.)
    Joint Carriers oppose expanded access to Waybill data beyond what 
was proposed in Arbitration NPRM. They note that the process set forth 
in 49 CFR 1244.9(b)(4), under which complainants can still obtain 
access to additional data, is straightforward and such requests are 
typically granted promptly. (Joint Carriers Reply 18.) They further 
argue that the proposed limits are consistent with precedent and the 
highly confidential nature of the Waybill Sample. (Id. at 19.) Lastly, 
Joint Carriers argue that Coalition Associations are incorrect when 
they say that the FORR proposal gives complainants access to the 
Waybill Sample without restrictions, as the cases cited by the Board in 
FORR SNPRM limit Waybill data to that of the defendant carriers. (Id.)
a. Commodities
    The Board will modify the final rule to allow complainants to have 
access to the defendant carrier's Waybill data for all movements 
without restriction on commodity type. The agency's practice in Three-
Benchmark cases has been to provide complainants with data for all 
commodities.\30\ The Waybill data is provided to complainants so that 
they can select those movements from the data set that they believe 
create the most appropriate comparison group, but also so they can 
verify the Board's RSAM and R/VC>180 
calculations. See Waybill Data Released in Three-Benchmark Rail Rate 
Proceedings, Docket No. EP 646 (Sub-No. 3), slip op. at 9 n.20 (STB 
served Mar. 12, 2012); Simplified Standards for Rail Rate Cases 
(Simplified Standards), EP 646 (Sub-No. 1), slip op. at 79 (STB served 
Sept. 5, 2007). Accordingly, upon further consideration, the Board sees 
no reason that complainants in the arbitration process should be more 
restricted than in Three-Benchmark cases, particularly since 
complainants in arbitrations may choose to perform similar types of 
comparison analyses. This would also align with the procedures adopted 
in FORR. See FORR SNPRM, EP 755, slip op. at 37.\31\
---------------------------------------------------------------------------

    \30\ In the original notice of proposed rulemaking adopting the 
Three-Benchmark test, the Board stated that ``[u]nder our proposal 
here, once we find that a complainant is eligible to use the Three-
Benchmark method, we would release to lawyers and consultants who 
have signed the necessary confidentiality agreement all movements in 
the most recent Waybill Sample that have the same 2-digit STCC code 
as the issue movement and an R/VC ratio above 180%.'' Simplified 
Standards for Rail Rate Cases, EP 646 (Sub-No. 1), slip op. at 32-33 
(STB served July 28, 2006). However, in adopting the final rule in 
that proceeding, the Board did not mention this limitation or 
indicate that it was being adopted. Simplified Standards for Rail 
Rate Cases, EP 646 (Sub-No. 1), slip op. at 78-80 (STB served Sept. 
5, 2007). In Waybill Data Released in Three-Benchmark Rail Rate 
Proceedings, Docket No. EP 646 (Sub-No. 3) (STB served Mar. 12, 
2012), the Board, pursuant to a court remand, again considered its 
rules for release of Waybill data in Three-Benchmark cases but, 
again, there was no mention of this limitation on the scope of the 
Waybill data.
    \31\ In FORR SNPRM, the Board also stated that waybill access 
(subject to appropriate protective orders) would include the full 
sample, including unmasked revenue, as is allowed in Three-Benchmark 
cases. FORR SNPRM, slip op. at 37. In Arbitration NPRM, the Board's 
proposed regulation also allowed for release of unmasked Waybill 
data. That provision will be included as part of the final rule 
here.
---------------------------------------------------------------------------

    For the same reason, the Board will also amend the regulatory text 
so that the Waybill data provided to complainants is not limited only 
to movements with revenue to variable cost (R/VC) ratio above 180%.\32\
---------------------------------------------------------------------------

    \32\ Although the Board takes no position on whether an 
arbitrator decision may rely on a methodology that utilizes 
movements below 180% R/VC, providing the data for such movements 
allows arbitration parties to verify the Board's RSAM and R/VC>180 
calculations.
---------------------------------------------------------------------------

Non-Defendant Carriers
    The Board will not expand the automatic Waybill data release 
requirements to include non-defendant carriers. Coalition Associations 
argue that access to other railroads could be needed in some rate 
comparison analyses. In Arbitration NPRM, the Board acknowledged that 
there could indeed be instances where such data is needed, but if so, 
parties could request such data from the Director of OE. The Board 
proposed amending its regulations at 49 CFR 1244.9(b)(4) to allow for 
such requests in arbitration proceedings. Allowing the Director to 
review such requests on an individual, case-by-case basis will provide 
a way for the Board to ensure that only confidential Waybill data of 
other carriers that is relevant to the arbitration is released.
    The Board will also clarify that a defendant carrier's outside 
attorneys and consultants should be given access to any non-defendant 
carrier Waybill data that is provided to the complainant. Doing so is 
necessary to avoid creating informational asymmetry. Accordingly, if 
the Director grants a complainant's request for access to non-defendant 
carrier data, the Director will inform the defendant carrier so that 
the carrier's outside attorneys and consultants can obtain the same 
data, pursuant to the required confidentiality agreement and 
undertakings.
b. Waybill Requests
    Coalition Associations argue that the process of requesting 
additional data is itself problematic. Under the proposal in 
Arbitration NPRM, a party seeking more Waybill data would need to have 
their law firm or consultant file a request that meets the requirements 
of 49 CFR 1244.9(b)(4), specifically, that a party:
     Demonstrate that ``[t]he STB Waybill Sample is the only 
single source of the data or obtaining the data from other sources is 
burdensome or costly, and the data is relevant to issues'' in a pending 
arbitration; and
     Include a request that meets the requirements of 49 
CFR1244.9(e), which states that applicants must provide ``(i) A 
complete and detailed explanation of the purpose for which the 
requested data are needed[;] (ii) A description of the specific waybill 
data or fields actually required (including pertinent geographic 
areas)[; and] (iii) A detailed justification as to why the specified 
waybill data are needed.''

Coalition Associations argue that this process would require the 
complainant to litigate the merits of its methodology before it can 
even develop and present evidence based on that methodology; that there 
is no guarantee that the Director will release the data; that there are 
no clear standards for granting its release; that the Director's 
decisions are given a high standard of deference; and that the process 
could take a week or longer if there is an appeal to the Board, making 
arbitration more costly and time-consuming. (Coalition Ass'ns Comment 
18-19.)
    Coalition Associations' arguments are misplaced. The revised text 
of Sec.  1244.9(b)(4) being adopted here sets forth clear requirements 
for seeking the release of Waybill data in arbitrations (and other STB 
proceedings): a complainant needs to demonstrate that there is 
reasonable need for the data relating to the methodology that it 
intends to use in a formal case or an arbitration and the Waybill 
Sample is the only source of this data. Thus, contrary to Coalition 
Associations' assertion, the Director would not be prejudging the 
complainant's methodology, but instead, merely assessing whether the 
data being sought is relevant to that methodology and whether the data 
is the only source of the information. Complainants in arbitration 
matters would be similarly situated to other complainants that seek 
confidential Waybill data in Board

[[Page 717]]

proceedings without automatic disclosure.
    The Board also notes that--in contrast to ``other user'' requests 
under 49 1244.9(c)--under 49 CFR 1244.9(b)(4), which will be the 
process for requesting Waybill data for arbitrations, there are no 
notice-and-objection procedures. Accordingly, the Board does not expect 
that there would be adversarial litigation regarding the scope of an 
arbitration complainant's initial waybill request.
    Appeals of the Director's orders may be brought to the Board 
pursuant to 49 CFR 1115.1.\33\ As specified in 49 CFR 1115.1(c), the 
party appealing the Director's ruling will have 10 days to file the 
appeal and other parties will have 10 days to file responses. The Board 
will add language to the regulatory text of the arbitration program to 
make this clear.\34\ In addition, the Board will include language that 
pauses the arbitration process until the Board has issued its decision 
ruling on the appeal.
---------------------------------------------------------------------------

    \33\ Under this regulation, parties may appeal decisions of 
employees acting under authority delegated to them pursuant to 49 
CFR 1011.6. The Director's authority to grant or deny access to 
Waybill data is set forth in 49 CFR 1011.6(e).
    \34\ In adjudications before the agency, if the party appealing 
the Director's decision wishes for the appeal to be heard prior to 
the final decision in the case, it would have to meet the criteria 
for an interlocutory appeal under 49 CFR 1115.9. See Finch Paper 
LLC--Pet. for Decl. Order, FD 35981, slip op. at 5 (STB served Jan. 
11, 2017). However, under the regulations being implemented here, 
the Director's decision on waybill access would be handled 
separately from the arbitration process. Accordingly, the Board will 
consider the Director's decision to be immediately appealable to the 
Board. See 49 CFR 1115.1(c). For that reason, such requests should 
be submitted as filings with a ``WB'' docket prefix.
---------------------------------------------------------------------------

    As discussed below, see infra Part III.I.4, the Board finds that 
the Director's decision on the Waybill data request, as well as the 
Board's decision on any appeal of the Director's decision, will not be 
confidential. As such, requests for Waybill data will result in the 
disclosure of the existence of the arbitration and the identity of the 
participating parties, thus creating an exception to the Board's 
requirement that the arbitration process remain confidential. The Board 
specifically highlighted this problem in Arbitration NPRM and invited 
parties to comment on whether there were alternate means for preserving 
confidentiality. No party addressed this issue, and the Board has not 
identified any workable alternative.
4. Admissible Evidence
    As proposed in Arbitration NPRM, EP 765, slip op. at 32, 
arbitration decisions will be deemed non-precedential and therefore 
will be inadmissible in other arbitrations.

D. Market Dominance

    In Arbitration NPRM, the Board proposed allowing the arbitration 
panel to rule on the issue of market dominance as part of the 
arbitration process. Arbitration NPRM, EP 765, slip op. at 35. The 
Board's proposal was based on a modified interpretation of 49 U.S.C. 
11708(c)(1)(C). Previously, in Revisions to Arbitration Procedures, 
Docket No. EP 730, the agency had interpreted Sec.  11708(c)(1)(C) as 
requiring the Board to decide whether there was market dominance (or, 
alternatively, that the parties concede market dominance) before 
proceeding to arbitration. See Revisions to Arb. Procs., EP 730, slip 
op. at 6-7 (STB served Sept. 30, 2016), corrected (STB served Oct. 11, 
2016); see also Revisions to Arb. Procs., EP 730, slip op. at 2-3 (STB 
served May 12, 2016). But after re-examining the text of that statute, 
as well as 49 U.S.C. 10707 (which is referenced in Sec.  
11708(c)(1)(C)), the Board concluded that the statute could be read to 
allow the arbitration panel to rule on market dominance (though the 
Board proposed also continuing to allow the carrier to concede market 
dominance or for the parties to jointly request that the Board make the 
determination).
    In addition, the Board proposed that complainants in a small rate 
case arbitration could attempt to establish market dominance using 
either the streamlined \35\ or non-streamlined approach. Arbitration 
NPRM, EP 765, slip op. at 36. Finally, the Board proposed that 
arbitrators be prohibited from considering evidence on product and 
geographic competition and the limit price test as part of the market 
dominance analysis. Id.
---------------------------------------------------------------------------

    \35\ See Mkt. Dominance Streamlined Approach, EP 756 (STB served 
Aug. 3, 2020) (adopting an approach that allows complainants to make 
a prima facie showing of market dominance based on an established 
set of factors).
---------------------------------------------------------------------------

    NGFA supports the ability to demonstrate market dominance using the 
streamlined or traditional approach, as well as the prohibitions on 
product and geographic competition and the limit price test. (NGFA 
Comment 8-9.) AFPM also supports allowing the arbitration panel to 
decide market dominance, but only if the lead arbitrator meets the 
qualification requirements of 49 CFR 1108.6. It argues that such a 
determination may be too complex for an arbitrator that does not have 
these qualifications. (AFPM Comment 11.) \36\
---------------------------------------------------------------------------

    \36\ As noted above, the Board is in fact adopting a 
qualification requirement for the lead arbitrator. See supra Part 
III.B.
---------------------------------------------------------------------------

    BNSF argues that the Board should allow consideration of product 
and geographic competition as part of the market dominance inquiry. 
(BNSF Comment 4.) It argues there is a ``significant asymmetry'' in 
allowing shippers to pursue novel rate methodologies yet refusing to 
allow carriers to present evidence of product and geographic 
competition and that the new arbitration program could be an 
``incubator'' for more efficient ways to present evidence of product 
and geographic competition. (Id. at 4-5.) BNSF states that any concerns 
about evidentiary sprawl would be mitigated by the various procedural 
constraints (i.e., discovery limits, time frames). (Id. at 5.) BNSF 
proposes, alternatively, that the Board allow product and geographic 
competition in cases where only the traditional market dominance 
approach is used. (Id.)
    Coalition Associations oppose BNSF's request to allow carriers to 
present evidence of product and geographic competition as part of the 
market dominance inquiry. They note that the Board has previously 
excluded such evidence because it places a substantial burden on the 
agency by having to address materials outside its area of expertise. 
(Coalition Ass'ns Reply 25.) They also argue that BNSF has failed to 
explain how parties could address these complex matters in an 
abbreviated proceeding. (Id.)
    No commenters addressed the Board's proposal to allow the 
arbitration panel to rule on market dominance. Accordingly, the Board 
will adopt this aspect of Arbitration NPRM in the final rule.
    The Board declines to adopt BNSF's proposal to allow consideration 
of product and geographic competition as part of the market dominance 
analysis. Although the Board has recognized that product and geographic 
competition may impact competitive options, the Board does not 
currently consider product and geographic competition in its market 
dominance determinations due to the complexity such an analysis would 
add to the process. See Mkt. Dominance Streamlined Approach, EP 756, 
slip op. at 31-32 (STB served Aug. 3, 2020) (``The goal of the 
streamlined market dominance approach is to reduce the burden on 
parties and expedite proceedings, a goal that would not be met by 
reintroducing a requirement that the agency has

[[Page 718]]

repeatedly found to be too burdensome as part of the non-streamlined 
approach.''); Pet. of the Ass'n of Am. R.Rs. to Inst. a Rulemaking 
Proceeding to Reintroduce Indirect Competition as a Factor Considered 
in Mkt. Dominance Determinations for Coal Transported to Util. 
Generation Facilities, EP 717, slip op. at 9 (STB served Mar. 19, 2013) 
(``[A]nalyzing and adjudicating a contested allegation of indirect 
competition is rarely straightforward and would require a substantial 
amount of the Board's resources to examine matters far removed from its 
transportation expertise and to determine if indirect competition 
effectively constrains rates to reasonable levels . . . .''). As 
indicated in FORR Final Rule, consideration of whether to incorporate 
product and geographic competition in market dominance determinations 
has constituted entire rulemaking proceedings on its own,\37\ and 
addressing it here would unduly expand the scope of this proceeding. 
FORR Final Rule, EP 755, slip op. at 26 (reserving this issue for 
possible future proceedings). Accordingly, the Board will adopt the 
regulations pertaining to market dominance without changes.
---------------------------------------------------------------------------

    \37\ See, e.g., Mkt. Dominance Determinations--Prod. & 
Geographic Competition, Docket No. EP 627; Pet. of the Ass'n of Am. 
R.R.s, Docket No. EP 717.
---------------------------------------------------------------------------

E. Rate Reasonableness Standard of Review

    In Arbitration NPRM, the Board noted that 49 U.S.C. 11708(c)(3) 
requires the arbitration panel to consider the Board's methodologies 
for setting maximum lawful rates, giving due consideration to the need 
for differential pricing, and to ensure that its decision is consistent 
with sound principles of rail regulation economics. Arbitration NPRM, 
EP 765, slip op. at 37. However, Petitioners asserted, and the Board 
agreed, that the statute does not require the arbitration panel to 
follow any particular methodology. Accordingly, the proposed 
regulations were designed to allow complainants methodological 
flexibility to demonstrate to the arbitration panel that the rate is 
unreasonable. Id. In addition, the Board proposed adding market-based 
factors to the criteria upon which the arbitration panel could base its 
decision. Id. at 38.\38\
---------------------------------------------------------------------------

    \38\ Proposed 49 CFR 1108.29(b)(2) specifically stated that the 
arbitration panel may ``otherwise base its decision on the Board's 
existing rate review methodologies, revised versions of those 
methodologies, new methodologies, or market-based factors, 
including: rate levels on comparative traffic; market factors for 
similar movements of the same commodity; and overall costs of 
providing the rail service.'' Arbitration NPRM, EP 765, App. A. It 
also stated that the decision ``must be consistent with sound 
principles of rail regulation economics.'' Id.
---------------------------------------------------------------------------

    BNSF argues that some of the features of the alternative dispute 
resolution program it jointly developed with Montana grain interests 
(Montana ADR Program) should be incorporated into the Board's proposed 
arbitration program. Specifically, BNSF notes that the Board proposed 
only that market-based factors ``may'' be considered by the arbitration 
panel, but BNSF argues that such factors should be mandatory 
considerations. (BNSF Comment 2.) BNSF claims this will encourage 
settlements, or at least make the arbitration process more efficient, 
by forcing parties to rely more on commercial representatives than on 
lawyers and consultants. (Id. at 2-3.) It also argues that the market-
based factors are consistent with Board principles intended to reflect 
market dynamics. (Id. at 3.)
    BNSF also notes that not all of the market-based factors included 
in the Montana ADR Program were included in the text of the proposed 
regulations and suggests that they be added. These include 
``consideration of the capital requirements of the rail system used by 
the complainant's traffic and the revenue available to sustain the 
network'' and ``relief would not be justified in the event a truck rate 
that is lower than the contested rail rate is available to the 
complainant from origin to destination for the same commodity for the 
specific mileage segment.'' (Id.)
    Coalition Associations oppose BNSF's proposal to add more market-
based factors to the decisional criteria or to make them mandatory, 
arguing that doing so would inhibit the shipper's ability to have 
flexibility in making its case and that railroads are free to rebut a 
shipper's evidence by presenting market-based factors. (Coalition 
Ass'ns Reply 25.) They also argue that the existence of a lower truck 
rate is not necessarily indicative that a rail carrier's rate is 
reasonable. (Id. at 26.)
    In its comment, USDA argues that while the process for deciding 
rate reasonableness in FORR is clear, the process for arbitration is 
unclear. In particular, it argues that there is no explanation of 
whether the arbitration panel will tend to choose a mid-point between 
the shipper and railroad positions; create its own, independent measure 
of what is a reasonable rate; or use some other process. (USDA Comment 
3.) USDA notes that railroads have criticized FORR for involving 
uncertainty; yet, USDA claims, the railroads' proposed arbitration 
process has even more uncertainty than FORR, which is designed to 
produce reasonable outcomes. (Id.) \39\
---------------------------------------------------------------------------

    \39\ In support of the need for greater access to rate relief, 
USDA states that no grain shipper has brought a rate case in over 20 
years, even though the Board's own recently published rate study 
shows that grain rates have been equal to or higher than their 1985 
levels for the past decade, whereas rates for other commodities have 
fallen. (USDA Comment 2.) As noted above, see supra Part I.B.1, the 
need for greater access to rate relief, including for grain 
shippers, has been well-established and so the Board need not 
address this argument.
---------------------------------------------------------------------------

    The Board will not make the modifications proposed by BNSF. To the 
extent that parties believe that market-based factors are relevant to 
the reasonableness of the rate, they are free to raise them, and 
arbitrators are free to consider them, but there is no need to make it 
a mandatory requirement. The proposed regulations already include a 
long list of criteria that the arbitration panel must consider in 
rendering its decision--the need for differential pricing, statutory 
authorities, and sound economics. These criteria entail aspects of 
market-based pricing, even if that concept is not specifically 
addressed. Indeed, differential pricing--charging shippers different 
rates based on demand--is a market-oriented concept. Requiring the 
panel to separately address market-based factors in its decision, in 
addition to the similar criteria it must already address, would merely 
add unnecessary complication.\40\ For this same reason, there is no 
need to include the other Montana ADR Program market-based factors in 
the regulatory text.
---------------------------------------------------------------------------

    \40\ In the regulatory text, the Board lists three specific 
items that can be considered market-based factors. The Board will 
add the phrase ``for example'' to the regulatory text so that it is 
clear that these are not the only market-based factors that may be 
considered. See App. A (49 CFR 1108.29(b)(2)).
---------------------------------------------------------------------------

    In response to USDA's argument that the process for deciding rates 
is unclear, the Board clarifies that the arbitration program adopted 
here is not limited to a final offer structure. Accordingly, the 
arbitration panel is not required to set the rate only at an amount 
proposed by one of the parties. The decision of the arbitration panel 
must be consistent with Sec.  11708 (and related requirements) and 
sufficient to survive review under 49 CFR 1108.29(b)(2). The criteria 
for a decision set forth in the statute and this regulation should 
provide the parties with a sufficient degree of certainty as to how the 
rate in an arbitration decision will be determined.

F. Revenue Adequacy

    The Board in Arbitration NPRM rejected a request from Petitioners 
that the new arbitration program include a general prohibition on 
revenue

[[Page 719]]

adequacy evidence or methodologies. Arbitration NPRM, EP 765, slip op. 
at 38-40. The Board indicated that Petitioners had not sufficiently 
justified such methodological and evidentiary restrictions. Id. at 39. 
Additionally, the Board stated that Petitioners' proposed evidentiary 
restriction relating to revenue adequacy conflicted with Sec.  
11708(c)(3)'s requirement that arbitrators give ``due consideration to 
the need for differential pricing to permit a rail carrier to collect 
adequate revenues (as determined under section 10704(a)(2)).'' Id. The 
Board also stated that it was difficult to reconcile the methodological 
flexibility afforded to arbitrators under this new arbitration process 
with a revenue adequacy prohibition, particularly when it came to 
existing rate case methodologies and market-based factors that 
contained revenue-adequacy concepts to which Petitioners themselves did 
not object. Id. at 39-40.
1. Railroad Interests
    Joint Carriers indicate that their primary concern with the new 
arbitration program proposed by the Board is the allowance of claims 
based on the revenue adequacy constraint. They argue that the Board 
should not let the controversy surrounding the revenue adequacy 
constraint be the demise of what is otherwise a workable forum for 
resolving rate disputes. (Joint Carriers Reply 3.) Joint Carriers 
intimate that they would not participate if revenue adequacy constraint 
claims can be arbitrated. (Id. at 11.) In contrast, BNSF states that it 
would not pre-condition its participation in the arbitration program on 
the exclusion of methodologies and evidence pertaining to revenue 
adequacy. As such, BNSF would choose to participate in the program 
outlined in Arbitration NPRM. (BNSF Comment 2.)
    Joint Carriers state that they understand the concerns raised by 
the Board in Arbitration NPRM but that ``more time is needed for the 
industry to come to a consensus on how to resolve the Board's concerns 
and also incentivize carrier participation in the [arbitration 
program].'' (Joint Carriers Comment 7.) They further state that the 
Board ``should reserve the use of any so-called revenue adequacy 
constraint under Coal Rate Guidelines to formal rate cases.'' (Id. at 
8.) They claim that the Board's concerns in Arbitration NPRM all 
involved Petitioners' proposed restriction on revenue adequacy 
evidence, but not the restriction on the revenue adequacy constraint, 
and that the Board has not justified allowing use of this ``ill-defined 
concept of rate regulation in an arbitration forum.'' (Id. at 15.) They 
make the following arguments for why revenue adequacy constraint claims 
should not be permitted in the new arbitration program.
    Shippers are Not Disadvantaged. Joint Carriers argue that the 
proposed arbitration program--even with a prohibition on revenue 
adequacy constraint claims--offers shippers exactly what they have 
requested. Specifically, the new program offers complainants some 
methodological flexibility beyond Stand-Alone Cost so that disputes can 
be resolved more quickly and with less cost and complexity, and avoids 
parties having to first seek a determination from the Board on market 
dominance. (Joint Carriers Comment 6.) Joint Carriers also argue that a 
prohibition would not prejudice shippers, as they would remain free to 
litigate revenue adequacy constraint claims in formal rate cases. (Id. 
at 17.)
    An Evidentiary Ban is Possible. In their comments, Joint Carriers 
also argue that they understand the Board's stated concerns in 
Arbitration NPRM about barring revenue adequacy evidence from 
arbitrations and claim it was not their intent to bar consideration of 
the need for differential pricing to permit a rail carrier to collect 
adequate revenues, including the Full-SAC, Simplified-SAC, and Three-
Benchmark tests. They claim that a revenue adequacy evidentiary ban can 
be redefined to address the Board's concerns and pledge to continue to 
explore ways to make the ban narrower. (Id. at 7, 18-19.)
    Unresolved Issues Should be Resolved by the Board. Joint Carriers 
argue that, rather than an arbitration panel, the Board, with its 
expertise, should be addressing the momentous, complex, and highly 
contested questions regarding the revenue adequacy constraint and the 
measure of revenue adequacy. (Joint Carriers Comment 7-9; Joint 
Carriers Reply 10.) Joint Carriers note that the Board itself stated in 
Assessment of Mediation & Arbitration Procedures, EP 699 (STB served 
May 13, 2013), that disputes implicating significant policy or 
regulatory issues are better suited for resolution using the Board's 
formal adjudicatory procedures. (Id. at 17.)
    Unresolved Issues Would Create Complications. Joint Carriers argue 
that the current revenue adequacy constraint test is ``afflicted with 
radical uncertainty'' and arbitrators would have no idea where to begin 
addressing such claims, as there would be no guidance from the Board, 
which would make arbitration decisions arbitrary and unsound. (Joint 
Carriers Comment 3.) They note that the Board has not resolved the 
serious flaws that carriers have identified with the use of revenue 
adequacy claims and argue that it would be inappropriate to leave this 
concept to be resolved in arbitration--particularly since the 
arbitrations are intended to be quick and simple. (Joint Carriers 
Comment 9-10; Joint Carriers Reply 10.) \41\ Similarly, they argue that 
revenue adequacy constraint claims would involve a tremendous amount of 
evidence, particularly since the Board has not provided guidance on the 
types of evidence that would be necessary in such cases. (Joint 
Carriers Reply 10.) Joint Carriers assert that the fact that there are 
three pending proceedings regarding revenue adequacy should foreclose 
the use of that methodology in arbitrations, particularly since it is 
unclear whether the Board's determinations in those proceedings would 
survive judicial review. (Joint Carriers Comment 15.)
---------------------------------------------------------------------------

    \41\ Joint Carriers summarize the four general concerns with 
using system-wide revenue adequacy to determine rate reasonableness 
that they have raised in other proceedings, including Joint Petition 
for Rulemaking--Annual Revenue Adequacy Determinations, Docket No. 
EP 766. (Joint Carriers Comment 10-14.) The Board need not address 
those substantive arguments here; it will address those arguments if 
and when those arguments are relevant to a particular arbitration 
decision that is appealed to the Board.
---------------------------------------------------------------------------

    Carriers in Arbitration Have Limited Appellate Rights. Joint 
Carriers argue that it is unfair to ask the railroads to litigate the 
issues of revenue adequacy in a forum with limited appellate rights, 
even though the railroads have asked the Board to address those 
arguments. (Joint Carriers Comment 17; Joint Carriers Reply 9-10.) They 
assert that the Board, which is the expert, should address these issues 
in the first instance, and that they should not be left to arbitration 
panels in a forum with an expedited timeframe. (Joint Carriers Reply 9-
10.)
* * * * *
    For these reasons, Joint Carriers request that the Board require 
that any claims based on the revenue adequacy constraint be filed in a 
formal rate case, at least until the Board has addressed the 
ambiguities surrounding it. (Joint Carriers Comment 8; Joint Carriers 
Reply 9.) \42\ Alternatively, they argue the Board should first adopt 
the railroad

[[Page 720]]

industry's proposal in Joint Petition for Rulemaking--Annual Revenue 
Adequacy Determinations, Docket No. EP 766, to modernize how revenue 
adequacy is measured so that parties do not fight over this issue in 
arbitration. (Joint Carriers Comment at 15-16.)
---------------------------------------------------------------------------

    \42\ Joint Carriers acknowledge that if the Board later does 
adopt a methodology on how the revenue adequacy constraint should be 
applied, it could be used in arbitration in the same way as other 
Board-recognized methodologies. They state, however, that this would 
be considered a material change in the law and so railroads would 
have to consider whether to opt out of the arbitration program. 
(Joint Carriers Reply 12.)
---------------------------------------------------------------------------

2. Shipper Interests
    NGFA and APFM both support permitting evidence and claims based on 
revenue adequacy to be used in arbitrations. (NGFA Comment 9; AFPM 
Comment 11.)
    Coalition Associations object to the Joint Carriers' arguments for 
banning revenue adequacy evidence. Coalition Associations argue that 49 
U.S.C. 11708(c)(3) contains a Congressional directive for the Board to 
consider revenue adequacy in Board-established arbitration programs. 
(Coalition Ass'ns Reply 13.) They also argue that the purpose of the 
revenue adequacy constraint is to identify the extent to which 
differential pricing is necessary to permit a carrier to collect 
adequate revenues pursuant to the concept of revenue adequacy defined 
at 49 U.S.C. 10704(a)(2). (Id.)
    Coalition Associations also state that a ban on revenue adequacy 
claims in arbitration would make formal cases the only option for 
shippers to bring a small claim asserting revenue adequacy. They argue 
that, because formal rate cases are widely recognized as inaccessible 
to shippers with small claims, there would essentially be no revenue 
adequacy constraint for small claims. (Id. at 14.) Litigating a small 
dispute in a formal case is not realistic, they claim, because 
railroads will employ a ``war-of-attrition strategy'' to make such 
cases as burdensome as possible. (Id.) Coalition Associations state 
that the ban on revenue adequacy is particularly problematic when 
combined with the FORR exemption: if both are adopted as part of the 
Board's arbitration program, revenue adequacy claims would not be 
possible in either the arbitration program or FORR. (Id.) \43\
---------------------------------------------------------------------------

    \43\ Coalition Associations respond to Joint Carriers' arguments 
disputing the validity of the revenue adequacy constraint. 
(Coalition Ass'ns Reply 15-19.) As noted above, supra n.41, the 
Board here will not consider Joint Carriers' arguments and so does 
not address Coalition Associations' counterarguments.
---------------------------------------------------------------------------

3. USDA
    USDA agrees with the Board that revenue adequacy is already 
embedded in a variety of rate reasonableness considerations and that 
the methodological flexibility of the arbitration program necessitates 
its inclusion. (USDA Comment 4.)
4. Board Action
    The Board will not modify the final rule to prohibit revenue 
adequacy constraint claims or evidence, as requested by Joint Carriers. 
In Arbitration NPRM, the Board expressed concern that Petitioners' 
proposed revenue adequacy restrictions were too broad and could 
therefore exclude claims and evidence that were permitted by statute or 
prior Board decision. Arbitration NPRM, EP 765, slip op. at 39-40. 
Specifically, the Board explained that Petitioners supported the use of 
the Three-Benchmark methodology in arbitration, even though one of the 
key pillars of that methodology is the Revenue Shortfall Allocation 
Method (RSAM) benchmark, which is a measure of revenue adequacy. 
Id.\44\ The logical extension of Petitioners' position--proposing broad 
prohibitions on any use of ``revenue adequacy'' in the arbitration 
program--was that the Three-Benchmark methodology would be prohibited 
as a ``revenue adequacy'' approach.
---------------------------------------------------------------------------

    \44\ RSAM is ``intended to measure the average markup above 
variable cost that the carrier would need to charge to meet its own 
revenue needs,'' i.e., to become revenue adequate. Simplified 
Standards, EP 646 (Sub-No. 1), slip op. at 19.
---------------------------------------------------------------------------

    In their comment, Joint Carriers only vaguely address the Board's 
concerns with a prohibition on revenue adequacy claims. They state, 
``[w]ith the high level of uncertainty surrounding the use of `revenue 
adequacy' in rate challenges--and the highly contentious nature of 
those questions--the Board should reserve the use of any so-called 
revenue adequacy constraint under Coal Rate Guidelines to formal rate 
cases filed before the Board.'' (Joint Carriers Comment 8.) Inherent in 
Joint Carriers' argument is the premise that it would be easy to 
separate ``so-called'' Coal Rate Guidelines revenue adequacy constraint 
methodologies from other new methodologies that rely on revenue 
adequacy to some degree. Even if one could differentiate when comparing 
Coal Rate Guidelines-based revenue adequacy claims versus other 
existing Board-defined methodologies, the distinction could be less 
clear when a complainant relies on a new methodology. One of the key 
features of the new arbitration program (which Petitioners supported in 
the petition for rulemaking) is that complainants will have 
methodological flexibility to demonstrate that a rate is unreasonable. 
This will allow complainants to develop new methodologies that, like 
Three-Benchmark, may contain aspects or components that are based on 
the concept of revenue adequacy, making them difficult to categorize. 
In such cases, the arbitration could turn into a debate over whether a 
methodology is permissible rather than on the merits of the rate 
itself. Restrictions on revenue adequacy methodologies could also have 
a chilling effect on complainants considering the use of new 
methodologies. In fact, parties may feel it necessary to come to the 
Board to first obtain a determination on whether a particular 
methodology is permitted before initiating the arbitration process, 
which would undermine the goal of methodological flexibility. Having to 
distinguish between permissible and impermissible categories of revenue 
adequacy claims and evidence would likely add more confusion and 
litigation expense in what is intended to be an expedited, streamlined 
dispute resolution process.
    Joint Carriers also provide no other specific comments on how to 
administer a partial revenue adequacy evidentiary prohibition. They 
argue that the Board's concerns with revenue adequacy in Arbitration 
NPRM all relate only to their proposed evidentiary ban, not with a ban 
on the revenue adequacy constraint itself. They acknowledge that their 
originally proposed prohibition on revenue adequacy evidence was too 
broad, but they claim that the ban could be more narrowly tailored and 
indicate that they would offer thoughts on how to do so in their reply. 
(Joint Carriers Comment 7, 18.) However, in their reply, no additional 
details are given as to how they would narrow the evidentiary ban, with 
Joint Carriers instead continuing to urge a methodological ban on the 
use of any revenue adequacy constraint. In any event, even a narrow 
evidentiary prohibition could still interfere with a complainant's 
ability to rely on new methodologies.
    Joint Carriers also argue that the Board, not arbitrators, should 
be ruling on the undefined issues surrounding revenue adequacy. 
However, if an arbitration decision is not appealed, the decision will 
remain confidential and non-precedential and so would have no impact 
outside of the arbitration in question. On the other hand, if an 
arbitration decision is appealed, the Board will be able to review the 
arbitration panel's decision pursuant to the standard set forth in 49 
U.S.C. 11708(h), including that the decision is consistent with sound 
principles of rail regulation economics.
    Joint Carriers argue that the carriers' appellate rights are 
limited under this statutorily prescribed standard of review. However, 
as discussed below, infra Part III.G, the Board expects to take

[[Page 721]]

a context-specific approach to reviewing arbitration decisions, 
including decisions that consider a revenue adequacy methodology. A 
context-specific finding in a particular appeal on the criteria set 
forth in 49 U.S.C. 11708(h) would not, standing alone, result in the 
adoption of, or a material change to, a particular methodology by the 
Board. Indeed, Board decisions to adopt or alter rate review 
methodologies have been based on broader considerations than the 
criteria set forth in the appeals standard. As such, the carriers' 
concerns that the Board is foregoing its role with respect to the 
issues surrounding revenue adequacy, including those that pertain to 
the constraint under Coal Rate Guidelines, are misplaced.
    Joint Carriers also express concern that claims based on revenue 
adequacy are too complex to be properly litigated within the structural 
confines of the arbitration process. However, the very purpose of the 
arbitration process is to force parties to streamline their cases to 
reduce this complexity. When deciding whether to initiate an 
arbitration based on a revenue adequacy constraint claim, a complainant 
will need to weigh the fact that it will be limited by the requirements 
of the arbitration process. Conversely, the same structural confines 
will force a defendant carrier to streamline its arguments in response 
to a revenue adequacy constraint claim.
    Finally, the Board finds Joint Carriers' argument that shippers 
would still gain significant benefits from an arbitration program that 
prohibits revenue adequacy evidence and methodologies to be highly 
speculative. At this time, there is no reason to deprive shippers of 
the opportunity to try out revenue adequacy approaches that would 
clearly be permissible in a FORR case.

G. Appeals

    Consistent with the requirements of 49 U.S.C. 11708(h), the Board 
proposed procedures allowing parties to appeal the arbitration panel's 
decision to the Board and established the standard of review the agency 
would apply in reviewing such decisions. See Arbitration NPRM, EP 765, 
slip op. at 43-44 (detailing procedures for appeal and the standard of 
review). Under that standard of review, the Board may review the 
arbitration decision to determine if:
    (1) the decision is consistent with sound principles of rail 
regulation economics;
    (2) a clear abuse of arbitral authority or discretion occurred;
    (3) the decision directly contravenes statutory authority; or
    (4) the award limitation . . . was violated.

The Board also proposed that the appellate submissions--including the 
arbitration decision, the petition to vacate or modify the arbitration 
award, and any reply--be filed under seal. Id. at 49. As for its 
decision ruling on the appeal, the Board proposed that it would be 
public, but that the Board would maintain confidentiality to the 
maximum extent possible. Id. at 50-51. Toward that end, the Board 
proposed a process allowing parties to review the Board's decision and 
request redactions prior to its publication. See id., App. A (proposed 
Sec.  1108.31(d)(2).) The Board also noted that its decisions on appeal 
would be precedential. Id. at 49.
    Joint Carriers argue that Board decisions resolving appeals of 
arbitration decisions should be non-precedential and binding only on 
the parties--the same as the arbitration decision itself. (Joint 
Carriers Comment 21.) Joint Carriers argue that Board decisions on 
appeal, if made precedential, could create law and policy. This 
outcome, they assert, will disincentivize parties from participating 
and encourage the high-stakes litigation tactics that arbitration is 
intended to avoid, thus undermining the entire purpose for making the 
arbitration decisions themselves non-precedential. (Id. at 22-23.) \45\ 
Joint Carriers claim that the Board has the authority to limit the 
precedential value of such decisions, arguing that it has previously 
been done by the Board and other agencies, and that such processes have 
been affirmed by the courts. (Id. at 23 n.45 (citing cases in support 
of assertion that the Board can designate certain decisions non-
precedential).)
---------------------------------------------------------------------------

    \45\ Joint Carriers note that the Board originally decided that 
Board decisions ruling on arbitration appeals would be precedential 
in Arbitration of Certain Disputes Subject to the Statutory 
Jurisdiction of the Surface Transportation Board, 2 S.T.B. 564, 577 
(1997). (See Joint Carriers Comment 22 n.44.) They further note that 
this resulted in the Board changing the language of the regulatory 
text that was originally proposed in that proceeding from 
``arbitration decisions'' to ``decisions rendered by arbitrators.'' 
(Id.) However, Joint Carriers point out that the Board then modified 
the language again in Assessment of Mediation & Arbitration 
Procedures, EP 699, slip op. at 31 (STB served May 13, 2013), this 
time changing the language back to ``arbitration decisions,'' though 
the Board did not discuss if a substantive change was intended. 
(Id.)
    Although the Board modified the language of 49 CFR 1108.10 in 
Assessment of Mediation & Arbitration Procedures, it is clear from 
the context of that provision when read as a whole, and from the 
Board's explanations in that proceeding, that the term ``arbitration 
decisions'' was referring only to the decisions issued by the 
arbitrators (not Board decisions ruling on appeals of arbitration 
decisions). In the regulation, the sentence that includes the term 
``arbitration decisions'' is proceeded by a sentence referring to 
``[d]ecisions rendered by arbitrators pursuant to these rules . . . 
.'' 49 U.S.C. 1108.10. The two sentences, when read together, 
indicate that the term ``arbitration decisions'' in the second 
sentence was referring back to the subject of the first sentence, 
i.e., ``Decisions rendered by arbitrators.'' In addition, at no 
point in Assessment of Mediation & Arbitration Procedures did the 
Board indicate that a change was intended. In fact, in the notice of 
proposed rulemaking, the Board stated the arbitration program 
``would allow carriers more flexibility in resolving customer-
specific disputes because resolution would be confidential and 
nonprecedential, unless the arbitrator's decision is appealed.'' 
Assessment of Mediation & Arb. Procs., EP 699, slip op. at 3 (STB 
served Mar. 28, 2012) (emphasis added).
---------------------------------------------------------------------------

    Additionally, Joint Carriers propose that the Board add a 
disclaimer to its decisions on appeal of arbitration decisions, similar 
to the digests the Board includes with full Board decisions, and as is 
done by other agencies. (Id. at 24.) They also suggest that if a party 
does introduce a non-precedential decision to the arbitration panel, 
the arbitration be immediately dismissed to ensure the panel is not 
improperly influenced. (Id.) Joint Carriers state that if the Board 
does decide to make its decisions on arbitration appeals precedential, 
then it should clarify that such decisions can constitute a material 
change in the law that allows carriers to withdraw from the arbitration 
program. (Id. at 24-25.) Joint Carriers argue that the narrow standard 
for review on appeal and the parties' limited appellate rights would 
not prevent the Board from potentially creating new law or policy 
through such decisions. (Id. at 25.)
    Coalition Associations oppose Joint Carriers' proposal that the 
Board's decisions on appeal be non-precedential for several reasons. 
First, they argue that if these Board decisions are non-precedential, 
carriers would likely appeal every adverse arbitration decision and, 
therefore, the cost to litigate an appeal to the Board would need to be 
considered an automatic expense. (Coalition Ass'ns Reply 21.) Second, 
Coalition Associations argue that non-precedential decisions on appeal 
will not discourage parties from using ``high-cost, high-stakes'' 
tactics during arbitration. Coalition Associations note that the 
appellate standard of review is focused only on fundamental issues of 
decisional fairness and quality, not an opportunity to relitigate the 
merits. (Id.) Third, Coalition Associations dispute the notion that 
precedential Board decisions will disincentivize carrier participation. 
(Id. at 22.) Coalition Associations argue that, even if the Joint 
Carriers were right and this is a disincentive, there are other 
incentives in the arbitration

[[Page 722]]

program that should encourage railroad participation. (Id.)
    The Board rejects Joint Carriers' request to make Board decisions 
on appeal non-precedential. Contrary to Joint Carriers' argument, the 
``disclaimer'' footnote appended to the digests in full Board decisions 
is not analogous to a Board decision resolving an arbitration appeal. 
The digest merely reflects a practice that the Board has developed for 
the purpose of ``increasing transparency in government and to foster 
public understanding of Board decisions.'' See Pol'y Statement on Plain 
Language Digs. in Decisions, EP 696, slip op. at 1-2 (STB served Sept. 
2, 2010). The digest does not contain any substantive legal findings or 
analysis, but merely summarizes the outcome of the Board's decision. 
Id. at 2 (stating that digests ``will be analogous to the syllabus and 
headnotes of United States Supreme Court decisions, which are prepared 
for the convenience of the public, but cannot be relied upon as 
precedent''). By contrast, in ruling on an appeal of an arbitration 
decision, the Board would be issuing a decision on whether the 
arbitration panel's decision meets statutorily prescribed standards.
    Board decisions, even in arbitrations, have always been public and 
precedential. Cf., e.g., Union Pacific Corporation--Control & Merger--
Southern Pacific Rail Corp., FD 32760 (Sub-No. 42) (STB served Feb. 28, 
2006) (citing Grand Trunk Western Railroad Company--Merger--Detroit & 
Toledo Shore Line Railroad Company--Arbitration Review, FD 28676 (Sub-
No. 2) (STB served Feb. 26, 1996)) (public decision in labor 
arbitration citing other precedential decisions in labor arbitrations). 
The cases cited by Joint Carriers are not relevant; they involve 
immigration and Medicare agencies issuing non-precedential decisions 
under federal laws quite distinct from the Board's governing 
statute.\46\ Here, neither the provisions of 49 U.S.C. 11708(h) nor the 
legislative history indicate that Congress intended that Board 
decisions in arbitration appeals should not be given precedential 
effect.
---------------------------------------------------------------------------

    \46\ See, e.g., Fogo de Chao (Holdings) Inc. v. U.S. Dept. of 
Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) (reviewing non-
precedential decision by the U.S. Citizenship and Immigration 
Services' Administrative Appeals Office regarding application of 
denial of a visa request pursuant to 8 U.S.C. 1184(c)(1)); Martinez 
v. Holder, 740 F.3d 902 (4th Cir. 2014) (reviewing non-precedential 
decision by the Board of Immigration Appeals regarding application 
of 8 U.S.C. 1231(b)(3), the Immigration and Nationality Act, and the 
Convention Against Torture treaty); Arobelidze v. Holder, 653 F.3d 
513 (7th Cir. 2011) (reviewing non-precedential decision by the 
Board of Immigration Appeals regarding application of the Child 
Status Protection Act); Quinchia v. U.S. Att'y Gen., 552 F.3d 1255 
(11th Cir. 2008) (reviewing non-precedential decision by the Board 
of Immigration Appeals regarding application of the Immigration and 
Nationality Act); Tangney v. Burwell, 186 F. Supp. 3d 45 (D. Mass. 
2016) (reviewing a non-precedential decision by the Medicare Appeals 
Council (within the U.S. Department of Health and Human Services) 
regarding Medicare Part D coverage).
---------------------------------------------------------------------------

    The Board also agrees with Coalition Associations that Joint 
Carriers' argument about ``high-cost, high-stake tactics'' is flawed. 
If a carrier loses an arbitration, the appeal of that decision to the 
Board would not serve as an opportunity for the carrier to make new 
arguments on the merits of rate reasonableness. Accordingly, the 
arguments made by the carrier in the arbitration should be rooted in 
the same issues regardless of whether the Board decision on appeal is 
precedential or non-precedential. It is unlikely that the fact that the 
Board's decision on appeal of the arbitration panel's decision would be 
precedential would materially change the nature of the defendant 
carrier's arguments.
    Because Board decisions on appeal of arbitration decisions would be 
precedential, Joint Carriers are correct that such Board decisions 
could, in principle, effect a material change in law. Accordingly, as 
requested by Joint Carriers, the Board clarifies here that a Board 
decision on an appeal of an arbitration decision could constitute a 
material change in the law for which a carrier could withdraw from the 
arbitration program. However, notwithstanding the fine distinctions 
that can be drawn between the terms ``precedential'' and ``non-
precedential,'' a decision ruling on an appeal of an arbitration 
decision would not by default establish any type of broad precedent 
that dictates or affects the outcome in future arbitrations or rate 
cases. The Board expects to review an arbitration decision under the 
Sec.  11708(h) factors based on the context of that specific 
arbitration. The four criteria by which the Board must review the 
arbitration decision are limited. The most expansive of these, and the 
one under which most appeals will likely be argued under, is the first 
criterion: that the decision is consistent with sound principles of 
rail regulation economics. There are multiple outcomes that an 
arbitration panel might reach in deciding whether a rate is reasonable 
that would be considered ``consistent with sound principles of railroad 
economics.'' Just because the Board affirms one of those possible 
outcomes in a particular arbitration decision as consistent with sound 
principles would not, by itself, create or alter a rate reasonableness 
methodology and therefore constitute a material change in law.
    Lastly, as a procedural matter, the Board will add regulatory 
language stating that the parties to an appeal of an arbitration 
decision may attach excerpts from any materials from the underlying 
arbitration record that are relevant to its petition or reply. In 
addition, the regulatory language will provide that such materials will 
be treated as confidential and will not count toward the page limit for 
such filings. See App. A (49 CFR 1108.31(a)(3)).

H. Relief

    The Board proposed that relief under the new arbitration program 
would be capped at $4 million over a two-year relief period, which 
could be a combination of retroactive relief (i.e., reparations) \47\ 
and prospective relief (i.e., prescription). Arbitration NPRM, EP 765, 
slip op. at 41-42. The Board proposed that amount and time-period to 
match the relief available under the proposal in FORR SNPRM. Id. at 41. 
Additionally, the Board proposed that parties could agree to modify the 
rate cap in a particular dispute, though they could not exceed the cap 
of $25 million or a five-year relief period set forth in 49 U.S.C. 
11708(g)(3). Id. at 43.
---------------------------------------------------------------------------

    \47\ The standard reparations period reaches back two years 
prior to the date of the complaint. 49 U.S.C. 11705(c) (requiring 
that complaint to recover damages under 49 U.S.C. 11704(b) be filed 
with the Board within two years after the claim accrues).
---------------------------------------------------------------------------

    Coalition Associations argue in the FORR proceeding that the relief 
cap for that process should be adjusted to match the cap currently in 
use in Three-Benchmark cases; as such, they state that the relief cap 
for the arbitration program should correspondingly be adjusted to 
maintain parity between the FORR and arbitration processes. (Coalition 
Ass'ns Comment 19-20.) They also propose that the Board allow the two-
year relief period to begin on a date set by the complainant.\48\ 
Coalition Associations argue that many carload shippers cannot or 
choose not to solicit business until they have obtained a reasonable 
transportation rate, which would not be established until the 
arbitration is complete, and then it may be several more months before 
shippers to have an opportunity to bid on such business. (Id. at 20.)
---------------------------------------------------------------------------

    \48\ Specifically, Coalition Associations propose that the 
complainant would notify the defendant in writing of the date on 
which it wishes the two-year relief period to begin and, in the 
absence of written notice, the period would begin on the one-year 
anniversary of the arbitration decision. (Coalition Ass'ns Comment 
20.)

---------------------------------------------------------------------------

[[Page 723]]

    AFPM and NGFA support the $4 million relief cap. (AFPM Comment 12; 
NGFA Comment 8.) However, AFPM also urges the Board to adopt a second 
tier of available relief in the FORR docket of ten years with no 
monetary limit and states that, if the Board were to do so, it should 
also do so for the new arbitration program. (AFPM Comment 12.)
    Joint Carriers do not oppose the Coalition Associations' request 
that the relief cap be raised to match the current amount of relief 
available in Three-Benchmark cases. (Joint Carriers Reply 21.) However, 
Joint Carriers oppose creating a two-tiered system of relief for FORR 
and the arbitration program and allowing shippers to determine the date 
on which the relief period starts. (Id. at 20-21.)
    The Board will keep the relief period at two years. However, the 
Board will increase the dollar cap on rate relief to the same amount as 
for Three-Benchmark cases, which today is $4,471,013.\49\ This amount 
will also match the amount of relief available under the FORR process, 
ensuring that shippers will be entitled to the same amount of relief 
regardless of whether carriers opt to participate in the new 
arbitration program or to be subject to FORR challenges. For the 
reasons set forth in FORR Final Rule, the Board will also reject 
Coalition Associations' request that a complainant be allowed to select 
the date on which prospective relief begins. FORR Final Rule, EP 755, 
slip op. at 30 (finding that such an option would allow complainants to 
choose a relief period that is entirely disconnected from the conduct 
found unlawful). Additionally, the Board in that decision is rejecting 
AFPM's proposal to establish a second, higher tier of rate relief for 
the FORR process. Id. (stating that the purpose of FORR is to resolve 
small disputes). The Board finds that the argument for a second tier in 
the arbitration program suffers from the same issues identified in FORR 
Final Rule.
---------------------------------------------------------------------------

    \49\ The Board annually indexes the rate relief cap for Three-
Benchmark cases using the Producer Price Index (PPI). See Simplified 
Standards, EP 646 (Sub-No. 1), slip op. 28 n.36; see also Rate 
Regulation Reforms, EP 715 (STB served July 18, 2013), remanded in 
part sub nom. CSX Transp., Inc. v. STB, 754 F.3d 1056 (D.C. Cir. 
2014), aff'd (STB served Mar. 15, 2015) (raising relief cap in 
Three-Benchmark cases from $1 million to $4 million). The relief cap 
for the arbitration program will incorporate indexing that has 
previously been applied to the Three-Benchmark cap, so that the cap 
for arbitration is the same as the cap for Three-Benchmark.
    In various filings, the parties addressing this issue have 
stated that the Board should index the relief cap using the Consumer 
Price Index, which the Board cited as the appropriate index in the 
proposed regulations in Arbitration NPRM. However, when indexing 
relief caps, the Board uses the Producer Price Index. See Rate 
Regulation Reforms, EP 715, slip op. at 11-12 n.10 (STB served July 
18, 2013). The Board will therefore modify the final rule 
accordingly. See App. A (49 CFR 1108.28(b)).
---------------------------------------------------------------------------

I. Confidentiality

1. The Board's Proposal
    In the initial petition for rulemaking, Petitioners proposed that 
the new arbitration process be confidential, a significant change from 
the existing arbitration program. The Board agreed that confidentiality 
would incentivize carriers to participate in the new program and 
therefore proposed that all aspects of the arbitration process from 
initiation of the case (i.e., submission of the Initial Notice) through 
the arbitration decision would be confidential. Arbitration NPRM, EP 
765, slip op. at 47-49. As such, the Board proposed that none of the 
documents or materials relating to the arbitration--including the 
arbitration decision itself--would be published on the Board's website 
or otherwise made available to the public.
    However, the Board noted that decisions from the Director of OE on 
requests for access to the confidential data from the Waybill Sample 
might be a possible exception. The Board proposed that the Director's 
determinations not be posted in a formal docket, id. at 30, but it also 
stated that there was uncertainty about whether the agency would be 
required to publish and/or release such rulings, id. at 48-49. 
Accordingly, the Board invited parties to comment on whether 
publication was required, as well as whether there are alternative 
means of preserving the confidentiality of these materials. Id. at 48-
49.
    The Board also proposed that any telephonic or virtual conference 
between the parties and the ALJ to resolve an objection to a party-
appointed arbitrator, and rulings by the ALJ on for-cause objections, 
would be deemed confidential as part of the arbitration process. 
However, it invited parties to comment on whether such communications 
would constitute ``dispute resolution communications'' as defined by 5 
U.S.C. 571(5), and as such would be exempt from disclosure under the 
Freedom of Information Act (FOIA) pursuant to 5 U.S.C. 574(j). Id. at 
48.
    Lastly, the Board determined that appeals of the arbitration 
decision to the Board could not be kept confidential, as Petitioners 
had requested. Id. at 49-50. As such, the Board proposed that parties 
must submit public versions of their appellate filings with appropriate 
confidential information redacted. Id. The Board also proposed that its 
decision ruling on the appeal would be public, but that the agency 
would attempt to keep confidential any financial or commercial 
information that would have an effect on the marketplace. Id. In 
particular, the Board proposed that it would be required to maintain 
the confidentiality of the arbitration decision to the ``maximum extent 
possible,'' giving particular attention to avoiding disclosure of the 
origin-destination pair involved in the arbitration as well as the 
specific relief awarded by the arbitration panel. Id. at 50-51. The 
Board included steps in the proposed regulation allowing parties an 
opportunity to review proposed redactions in the opposing side's filing 
and the Board's decision prior to posting and publication. Id. at 50; 
id. at App. A (proposed Sec.  1108.31(d)(2)).
    The Board provided several reasons why it proposed that the 
arbitration process be kept confidential to the maximum extent 
possible. First, if carriers were faced with the choice of formally 
adjudicating or arbitrating a rate dispute where the outcome would be 
public, carriers would be more likely to choose formal adjudication. 
Id. at 46-47. Second, public arbitrations might undermine the informal 
nature of the arbitration process, especially where the carrier fears 
that the decision would be used by shippers in other rate negotiations 
and disputes. Id. at 47. Third, keeping arbitration decisions 
confidential could encourage more settlements, as parties would not 
have to worry about the impact the settlement would have on other rate 
negotiations. Id. Lastly, the Board acknowledged that confidentiality 
was opposed by several of the shipper interests, but it concluded that 
confidentiality was a necessary trade-off to incentivize carriers to 
participate. Id.
2. Shipper Interests and USDA
    The shipper interests and USDA object to this aspect of the Board's 
proposal on the following grounds.
    Carrier Participation. Coalition Associations and NGFA dispute the 
notion that confidentiality will better incentivize carriers to 
participate in the arbitration program. Coalition Associations argue 
that the non-precedential nature of arbitration decisions renders most 
of the concerns about them being used in future rate negotiations moot. 
(Coalition Ass'ns Comment 8-9.) They argue that the carriers only 
advocate for confidentiality to gain an advantage in the arbitrations. 
(Id. at 9, 10-11.) NGFA also questions the Board's reasoning,

[[Page 724]]

given that the primary driver for the Petitioners' goal for the 
arbitration program was to obtain an exemption from FORR. (NGFA Comment 
7.)
    Transparency Will Encourage Settlements. AFPM, NGFA, IMA-NA, and 
Indorama dispute the notion that confidentiality would create an 
environment for more settlements and argue that the opposite is true: 
transparency would encourage more settlements. NGFA states that in its 
experience with its own arbitration system, a public decision often 
provides a significant incentive for the involved parties to settle the 
dispute themselves, often prior to the substantive start of the 
arbitration process. (NGFA Comment 7.) \50\ It asserts that the 
objective of an effective regulatory backstop is to incentivize market 
participants to enter into mutually acceptable arrangements, but 
excessive confidentiality can defeat that purpose. (Id. at 8.) IMA-NA 
and Indorama argue that the confidentiality requirement would prohibit 
the use of prior decisions in future arbitrations. (IMA-NA Comment 18; 
Indorama Comment 18.) These parties also point out that FORR decisions 
would be public, which they assert is another reason why FORR is 
preferrable to the arbitration program. (AFPM Comment 13; IMA-NA 
Comment 18; Indorama Comment 18; see also NGFA Comment 7 (arguing that 
this is another reason to limit the FORR exemption until such time as 
the Board conducts its programmatic review).)
---------------------------------------------------------------------------

    \50\ NGFA proposes that the arbitration decision be published on 
the Board's website, including: the names of the parties involved, a 
general description of the case, the rationale and reasoning, the 
award (if any), and the names of the arbitrators. (NGFA Comment 7.)
---------------------------------------------------------------------------

    Informal Litigation. NGFA disagrees with the idea that 
confidentiality will make arbitration more informal and less like 
litigation. It states that there is no track record or actual proof 
that challenging rates in an arbitration process will be any less 
rigorous than a case litigated under FORR. (NGFA Comment 7.) Coalition 
Associations argue that if arbitration decisions are non-precedential, 
carriers should have no disincentive to arbitrate or any reason to 
treat the arbitration like a formal litigation. (Coalition Ass'ns 
Comment 9.)
    Informational Asymmetry. Coalition Associations argue that making 
the arbitration process confidential would create an unfair 
informational asymmetry because carriers will have more experience with 
arbitration than shippers. (Coalition Ass'ns Comment 8.) Specifically, 
they claim that keeping the arbitrations confidential will prevent 
shippers from having any idea what types of arguments have or have not 
been successful and give railroads an advantage when it comes to 
picking arbitrators. (Id. at 9-10; Coalition Ass'ns Reply 6.) Coalition 
Associations argue that this informational asymmetry increases the risk 
that shippers will enter into inadvisable settlements. (Coalition 
Ass'ns Comment 9.) They note that there would be no such informational 
asymmetry problem under the FORR process. (Coalition Ass'ns Reply 6.)
    USDA raises the same concern about informational asymmetry. 
However, instead of making arbitration decisions public, USDA 
encourages the Board to seek more information in the confidential case 
summaries and provide as much information as possible in the agency's 
quarterly reports, including descriptions of the types of evidence or 
arguments that were made (including what methodologies were relied 
upon). (USDA Comment 4.)
    ADR Act Requirements. Coalition Associations dispute the 
Petitioners' original assertion that confidentiality is inherent in 
arbitrations, given that the Alternative Dispute Resolution Act (ADR 
Act) does not protect arbitration decisions from disclosure; rather, 
the ADR Act only requires that communications made for the purposes of 
negotiation be confidential. Coalition Associations argue that, because 
an arbitration decision does not reflect communications made during the 
negotiations, there is no reason to keep the decision confidential. 
(Coalition Ass'ns Reply 6-7.) They argue that arbitration decisions 
``reflect[] each party's case made in a litigation-like context where 
neither party has any incentive to admit any weakness or proceed with 
less formality.'' (Id. at 7.) Coalition Associations also argue that 
the cases cited by Petitioners in the petition for rulemaking do not 
support making arbitration decisions confidential. (Id. at 7-8.)
3. Railroad Interests
    Joint Carriers and AAR oppose calls from the shipper interests to 
eliminate confidentiality. Joint Carriers explicitly state that they 
will not participate in the arbitration program unless the decisions 
remain confidential (to the extent permissible by law). (Joint Carriers 
Reply 15.) Joint Carriers also argue that making the arbitration 
decisions public would disincentivize settlements. (Joint Carriers 
Reply 14.) Similarly, AAR disputes NGFA's assertion that a public 
decision will incentivize dealmaking. Instead, AAR claims that the 
threat of a public decision--even if non-precedential--will incentivize 
each side to ``dig in on its position.'' (AAR Reply 12.) Joint Carriers 
and AAR both note that the need for confidentiality is highlighted by 
IMA-NA and Indorama's comments, in which those parties expressly state 
that they desire public arbitration decisions to use as leverage in 
other commercial negotiations. (Joint Carriers Reply 14-15; AAR Reply 
12-13.)
4. Board Action
    The Board continues to find that confidentiality is necessary to 
the success of the arbitration program. Accordingly, as proposed in 
Arbitration NPRM, the Board will adopt regulations that maintain 
confidentiality for arbitrations to the maximum extent possible.
    Some of the shipper interests argue that public arbitration 
decisions would have benefits, including putting more pressure on the 
parties to reach a settlement. The Board does not dispute this 
argument, having already stated in Arbitration NPRM that ``the fact 
that an arbitration decision might impact other rate negotiations could 
be considered more of a reason to make arbitration decisions public.'' 
Arbitration NPRM, EP 765, slip op. at 47. However, that reasoning 
applies only in a situation where the parties are already required to 
participate in arbitration. Here, the arbitration process is voluntary. 
The benefits of making arbitration decisions public would be moot if 
carriers do not opt into the arbitration program to begin with.
    Despite the Coalition Associations' assertions, it is likely that a 
public arbitration decision adverse to a railroad would be used by 
other shippers in future rate negotiations. The fact that arbitration 
decisions are non-precedential would not lessen this concern. IMA-NA 
and Indorama expressly state that this is their motivation in requiring 
that arbitration decisions be public. (IMA-NA Comment 18; Indorama 
Comment 18.) Similarly, AFPM states that ``transparency may lead to a 
change in ratemaking behavior that could lead to more reasonable rates 
and therefore less need for dispute resolution.'' (AFPM Comment 13.) 
Again, the Board does not dispute that making arbitration decisions 
public would have benefits; however, as it stated in Arbitration NPRM, 
sacrificing those benefits is a trade-off the Board has determined is 
warranted given the other positives that the arbitration program would 
produce.
    Coalition Associations and NGFA also argue that confidentiality 
will not impact how vigorously carriers litigate

[[Page 725]]

in arbitration. The Board does not dispute that, in certain 
arbitrations, a carrier may use the same tactics that they would employ 
in a formal rate case. However, if a carrier is faced with two rates 
challenges--one seeking $2 million in relief through arbitration and 
one seeking $2 million in relief through a Three-Benchmark case--a 
carrier is more likely to vigorously defend the challenge in the Three-
Benchmark case than the arbitration, given that that decision would be 
public and precedential. In any event, even if the shippers are correct 
and confidentiality has no impact on the carriers' litigation tactics, 
confidentiality is nonetheless warranted for other reasons.
    The Board also finds that the informational asymmetry concern 
raised by Coalition Associations and USDA is overstated. Although 
complainants in arbitration would be afforded more flexibility in the 
arguments and methodologies they can present, those arguments and 
methodologies should still be based on the same fundamental principles 
of railroad economics underlying existing methodologies. See 49 U.S.C. 
11708(d) (requiring that arbitration decisions ``be consistent with 
sound principles of rail regulation economics''). Moreover, shippers 
are frequently represented by the same attorneys and consultants across 
proceedings, particularly in rate cases. Although those attorneys and 
consultants would be bound by confidentiality not to disclose any 
information about past arbitrations, they would have familiarity with 
the arguments and methodologies that were successful in prior 
arbitrations. And, again, informational asymmetry concerns are 
outweighed by the benefits of having a voluntary small-rate case 
arbitration program in the first place, which would likely be 
infeasible without confidential arbitration decisions. For these same 
reasons, the Board will not adopt USDA's suggestion of expanding the 
confidential summaries to include descriptions of the types of evidence 
or arguments made in an arbitration.
    Coalition Associations also argue that there is no expectation of 
confidentiality for arbitration decisions under the ADR Act.\51\ 
Although the ADR Act, 5 U.S.C. 571(5), does state that a ``final 
written agreement or arbitral award reached as a result of a dispute 
resolution proceeding[ ] is not a dispute resolution communication''--
meaning that the decision is not confidential--that requirement would 
apply only to documents within the Board's possession. Because the 
arbitration decision would not be provided to the Board (except when 
the decision is appealed, at which point it must be made public with 
redactions), the Board would not be in a position to disclose the 
decision. In addition, the ADR Act is not the Board's only source of 
authority for structuring arbitration programs. See 49 U.S.C. 11708. 
Accordingly, the Board finds that its confidentiality requirements here 
are not inconsistent with the ADR Act and that there are strong policy 
reasons in favor of making arbitration decisions confidential.
---------------------------------------------------------------------------

    \51\ Coalition Associations do not appear to dispute that the 
Board's proposed requirement that arbitration decisions be kept 
confidential is permissible under the ADR Act. (See Coalition Ass'ns 
Reply 6 (``While Petitioners claim that confidentiality is inherent 
in arbitration, this claim is dubious.'' (footnotes omitted)).)
---------------------------------------------------------------------------

    The Board notes that in Arbitration NPRM it proposed a provision 
stating that ``[w]ith the exception of the Waybill Sample provided 
pursuant to paragraph (g) of this section, the terms of the 
confidentiality agreement shall apply to all aspects of an arbitration 
under this part, including but not limited to discovery, party filings, 
and the arbitration decision.'' Arbitration NPRM, App. A (proposed 
Sec.  1108.27(f)). To ensure there is no confusion, the Board explains 
that this provision requires that the confidentiality agreement include 
terms that prevent parties from disclosing information about the 
arbitration process, including an arbitration decision or settlement 
agreement.
    As a result of this provision, the confidentiality requirements for 
the new arbitration process will be broader than what is provided for 
in the ADR Act (as noted, settlement agreements and arbitral awards are 
not considered confidential ``dispute resolution communications'' under 
the ADR Act). However, the Board concludes that parties may enter into 
confidentiality agreements that include provisions that are broader 
than the ADR Act.\52\ As discussed herein, the arbitration process is 
voluntary; if a party refuses to be bound by the confidentiality 
requirements set forth for the new arbitration program, it can choose 
not to participate.
---------------------------------------------------------------------------

    \52\ See 5 U.S.C. 574(d)(1) (``The parties may agree to 
alternative confidential procedures for disclosures by a 
neutral.''). Although the ADR Act does not have a similar provision 
regarding expansions of the confidentiality requirements applicable 
to the parties, the legislative history and other interpretations of 
the ADR Act indicate that it is permitted. See S. Rep. No. 101-543 
(1990), 1990 U.S.C.C.A.N. 3931, 1990 WL 201792 (``Such agreements 
and awards can be considered `dispute resolution documents' only 
when the government and other parties to the dispute explicitly 
agree in writing to this status, and the law otherwise permits such 
documents to be kept out of the public domain.'' (emphasis added)); 
see also Confidentiality in Federal Alternative Dispute Resolution 
Programs, 65 FR 83,085, 83,093 (Dec. 29, 2000) (explaining that 
parties may agree to confidentiality protection beyond what is 
provided for in the ADR Act despite no clear directive under the ADR 
Act); Interagency Alternative Dispute Resolution Working Group 
Steering Committee, Protecting the Confidentiality of Dispute 
Resolution Proceedings: A Guide for Federal Workplace ADR Program 
Administrators, at 34 (2006) (``Whether parties may increase their 
own confidentiality obligations by written agreement is an untested 
point of law.'') (available at: adr.gov/). The Board is not aware of 
any case in which a court has ruled that broader restrictions are 
not permitted under the ADR Act.
    Moreover, the Senate Committee report explained that settlement 
agreements and arbitral awards ``do not create reasonable 
expectations of confidentiality since they involve United States 
policy and actions.'' S. Rep. No. 101-543 (1990), 1990 U.S.C.C.A.N. 
3931, 1990 WL 201792. But under 49 U.S.C. 11708(d)(5), arbitration 
decisions are non-precedential; as such, they do not become policy. 
The Board is similarly requiring that settlement agreements be kept 
confidential to ensure that they too do not inadvertently become 
policy. Board decisions ruling on appeals of arbitration decisions 
could be precedential and thus establish agency policy. See supra 
Part III.G. But as the Board has explained, those decisions would 
not be confidential. The Board's broader confidentiality 
restrictions are therefore consistent with the stated goals of the 
Senate Committee report.
---------------------------------------------------------------------------

    Finally, as noted above, the Board explained in Arbitration NPRM 
that the agency may be required to publish decisions from the Director 
of OE on requests for access to the confidential data from the Waybill 
Sample beyond the automatic release discussed above. The Board proposed 
not publishing these decisions but also invited parties to comment on 
whether publication was required, as well as whether there are 
alternative means of preserving the confidentiality of these materials. 
Arbitration NPRM, slip op. at 48-49. The Board also proposed that any 
telephonic or virtual conference between the parties and the ALJ to 
resolve an objection to a party-appointed arbitrator, and rulings by 
the ALJ on for-cause objections, would be deemed confidential as part 
of the arbitration process. However, it invited parties to comment on 
whether such communications would constitute ``dispute resolution 
communications'' as defined by 5 U.S.C. 571(5), and as such would be 
exempt from disclosure under FOIA pursuant to 5 U.S.C. 574(j). Id. at 
48. No party addressed either of these issues.
    After further considering whether decisions by the Director of OE 
on Waybill requests must be disclosed, the Board finds that it should 
err in favor of transparency. Under FOIA, ``[e]ach agency, in 
accordance with published rules, shall make available for public

[[Page 726]]

inspection and copying--(A) final opinions, including concurring and 
dissenting opinions, as well as orders, made in the adjudication of 
cases.'' 5 U.S.C. 552(a)(2) (emphasis added). A related statutory 
provision defines ``order'' as ``the whole or a part of a final 
disposition, whether affirmative, negative, injunctive, or declaratory 
in form, of an agency in a matter other than rule making but including 
licensing.'' 5 U.S.C. 551. Given the absence of a readily apparent FOIA 
exemption that would apply to the Director's decision in this context, 
the Board concludes that the more prudent action is to publish these 
decisions. The Board will, however, delay publication of the Director's 
decision until after the arbitration has concluded, which the Board 
will be made aware of by the confidential summary parties must file 14 
days after the arbitration has ended. See App. A (49 CFR 1108.29(e).)
    The Board finds that the publication requirement, however, does not 
extend to the ALJ decisions ruling on for-cause objections to party-
appointed arbitrators. Although the ALJ is appointed by the Board, the 
ALJ would not be acting in an adjudicatory capacity but as a 
``neutral.'' See 5 U.S.C. 571 (defining a neutral as ``an individual 
who, with respect to an issue in controversy, functions specifically to 
aid the parties in resolving the controversy''). As such, the Board 
views the ALJ's decision as more akin to a ``dispute resolution 
communication'' under the ADR Act, which may be kept confidential. 5 
U.S.C. 574(a). Such communications are defined as ``any oral or written 
communication prepared for the purposes of a dispute resolution 
proceeding, including any memoranda, notes or work product of the 
neutral, parties or nonparty participant.'' 5 U.S.C. 571. Under the 
regulations being adopted here, the ALJ would be asked to resolve a 
dispute on the very narrow question of whether the proposed arbitrator 
can fulfill the requirements of 49 U.S.C. 11708(f)(2). The ALJ's 
decision would thus be no different from the arbitrator ruling on a 
discovery request, which can indisputably be kept confidential as a 
``dispute resolution communication.''
    As noted above, the Board is aware that publication of the 
Director's rulings on Waybill requests will result in the disclosure of 
the existence of the arbitration and the identity of the participating 
parties prior to any arbitration appeal. As with other features of the 
program, carriers will need to assess this risk of disclosure when 
deciding whether to participate in the arbitration program.

J. Program Review

    To ensure that the arbitration program is working as intended and 
proving effective, the Board proposed including within the regulations 
a requirement for the agency to conduct a programmatic review after a 
reasonable number of arbitrations have been conducted, though not later 
than three years after start of the program. Arbitration NPRM, EP 765, 
slip op. at 51. After the review, the Board would decide whether the 
arbitration program should be terminated or modified. The Board sought 
comment on how it should conduct such a review and the nature of the 
information it should seek to collect from those who have participated 
in the arbitration program, including whether it should require or 
request the submission of arbitration decisions as part of its review 
process. Id. at 51-52.
    In its comments, NGFA urges the Board to consider feedback not just 
from parties that have used the arbitration program, but parties that 
considered using the program and elected not to do so. (NGFA Comment 
6.) NGFA also encourages the Board to incorporate service data it 
collects from the Class I carriers into its evaluation of the 
arbitration program. NGFA argues this would allow the Board to 
determine if a carrier is retaliating against shippers that have 
brought arbitrations and for the Board to take action if necessary. 
NGFA states that this protection against potential retaliation will 
encourage shippers to use the arbitration program. (Id. at 9-10.)
    AFPM suggests that, as part of the three-year review, meetings with 
shippers and railroads would be most beneficial. It also notes that the 
confidentiality provisions may make the review difficult. (AFPM Comment 
14.)
    The Board agrees that, as part of the programmatic review, it would 
be useful to obtain feedback not just from parties that actually used 
the program, but also from those that considered using the program but 
chose not to. Accordingly, the Board will modify the regulatory 
language to allow for feedback from all interested parties. 
Additionally, as noted above, a significant consideration in evaluating 
the success of the arbitration program will be whether the cost to 
arbitrate is less than the cost to litigate. The Board will therefore 
also specify that the cost to arbitrate will be an area of focus in the 
programmatic review.
    As for NGFA's concern about retaliation, there is no need for 
shippers to wait until the programmatic review is conducted to raise 
such concerns with the Board. If a shipper believes it is being 
retaliated against for pursuing permissible regulatory relief--be it 
through arbitration or another process--the Board strongly encourages 
shippers to contact the Board's Rail Customer and Public Assistance 
program or file a formal complaint with the agency. That said, there is 
no need to require the impacts of arbitration on service to be 
specifically delineated as part of the programmatic review of the 
arbitration program. The regulation as proposed is sufficiently worded 
to allow the Board flexibility to consider any issues relevant to the 
effectiveness of the arbitration program, including service impacts.
    Finally, the Board acknowledges AFPM's concern that arbitration 
decisions will be confidential and thus unavailable to the Board as 
part of its programmatic review. The Board would only have access to an 
arbitration decision if it has been appealed to the Board (and even 
then, the confidential information would be redacted) or if the parties 
agree to waive confidentiality. If the Board determines that it needs 
access to additional confidential arbitration decisions to properly 
conduct the programmatic review, it will consider methods of obtaining 
that information without breaching confidentiality, such as requesting 
parties to jointly and voluntarily provide redacted versions of the 
decisions or having a third-party review the decisions and provide an 
assessment.

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. Sec. Sec.  601-604. In 
its final rule, the agency must either include a final regulatory 
flexibility analysis, Sec.  604(a), or certify that the proposed rule 
would not have a ``significant impact on a substantial number of small 
entities,'' Sec.  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

[[Page 727]]

proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 
2009).
    In Arbitration NPRM, the Board certified that the proposed rule 
would not have a significant economic impact on a substantial number of 
small entities within the meaning of the RFA.\53\ Arbitration NPRM, EP 
765, slip op. at 52. The Board explained that the proposal imposes no 
new record-keeping or reporting requirements upon small railroads. Id. 
Additionally, the Board explained that the proposed rule does not 
circumscribe or mandate any conduct by small railroads; participation 
in the arbitration program proposed here is strictly voluntary. Id. To 
the extent that the rules have any impact, the Board explained that it 
would be to provide faster resolution of a controversy at a lower cost, 
especially relative to the Board's existing Full-SAC, Simplified-SAC, 
and Three-Benchmark tests. Although the Board is modifying the final 
rule as proposed in Arbitration NPRM, those modifications do not impact 
the Board's reasoning regarding the economic impact on small railroads.
---------------------------------------------------------------------------

    \53\ 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 carriers classified as Class III rail 
carriers under 49 CFR 1201.1-1. See Small Entity Size Standards 
Under the Regul. Flexibility Act, EP 719 (STB served June 30, 2016).
---------------------------------------------------------------------------

    In Arbitration NPRM, the Board also stated that the $4 million 
relief cap and two-year prescription period would limit a participating 
small railroad's total potential liability. Id. Although the relief cap 
in the final rule is being increased from $4 million as proposed in 
Arbitration NPRM to $4,471,013 (an approximately 12% increase), that 
modification does not materially change the Board's conclusion that the 
proposed rule would not have a significant economic impact upon small 
railroads. In Arbitration NPRM, the Board further explained that the 
purpose of the proposed rules is to create an arbitration process to 
resolve smaller rate disputes, but (as the agency had previously 
concluded) the majority of railroads involved in rate proceedings are 
not small entities within the meaning of the RFA. Simplified Standards, 
EP 646 (Sub-No. 1), slip op. at 33-34. Since the inception of the Board 
in 1996, only three of the 51 cases challenging the reasonableness of 
freight rail rates have involved a Class III rail carrier as a 
defendant. Those three cases involved a total of 13 Class III rail 
carriers. The Board estimated that there are today approximately 656 
Class III rail carriers. Accordingly, even though the relief cap that 
small carriers would be subject to is being increased in the final 
rule, the potential for small carriers to be subject to a decision 
ordering such relief remains low.
    Accordingly, the Board certifies under 5 U.S.C. 605(b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities as defined by the RFA. This 
decision will be served upon the Chief Counsel for Advocacy, Office of 
Advocacy, U.S. Small Business Administration, Washington, DC 20416.

Paperwork Reduction Act

    In the NPRM, the Board sought comments pursuant to the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501-3521, Office of Management and 
Budget (OMB) regulations at 5 CFR 1320.8(d) about the impact of the new 
collection for an Arbitration Program for Small Rate Disputes (OMB 
Control No. 2140-0039), concerning (1) whether the proposed collection 
of information 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 estimated in the NPRM that the proposed new requirements 
would include a total annual hourly burden of 273 hours. There were no 
proposed non-hourly burdens associated with this collection. No 
comments were received pertaining to the collection of this information 
under the PRA. The new collection will be submitted to OMB for review 
as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11.

Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the 
Office of Information and Regulatory Affairs has designated this rule 
non-major, as defined by 5 U.S.C. 804(2).
    It is ordered:
    1. The Board adopts the final rule as set forth in this decision 
and below. Notice of the final rule will be published in the Federal 
Register.
    2. The final rule is effective February 3, 2023.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    Decided: December 19, 2022.
    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz. Board Member Fuchs concurred with a separate expression. Board 
Member Schultz commented with a separate expression.
BOARD MEMBER FUCHS, concurring:
    I agree with today's decision (Arbitration Final Rule) because it 
creates an efficient, beneficial voluntary program to resolve rate 
disputes, but I am concerned that the decision includes an unnecessary 
and potentially counterproductive condition: the new arbitration 
program cannot be used by any shipper or carrier if just one Class I 
carrier chooses not to participate. To its credit, this program 
includes many ideas and improvements offered by both rail carriers and 
shippers, and it is the product of consensus achieved through the 
steadfast leadership of former Chairman Begeman \54\ and Chairman 
Oberman. The program is low cost and offers the same potential maximum 
rate relief as FORR, and it avoids the process flaws and legal risks 
created by FORR Final Rule. See Final Offer Rate Review (FORR Final 
Rule), EP 755 et al. (STB served Dec. 19, 2022). Today, however, the 
Board lowered the probability that the benefits of the arbitration 
program will be realized because it simultaneously finalized FORR, 
offered carriers an exemption from FORR as a so-called incentive to 
participate in the arbitration program, and set a condition that the 
program will take effect only if all Class I carriers opt into 
arbitration soon after Arbitration Final Rule's issuance.\55\ Ideally, 
all carriers would participate in the new arbitration program, but 
Arbitration Final Rule's condition--when paired with FORR--may prevent 
the program from taking effect, thereby letting the ideal stand in the 
way of meaningful benefits for the public.
---------------------------------------------------------------------------

    \54\ As noted in today's decision, in January 2018, the Board 
established its RRTF with the objective of, among other things, 
determining how to best provide a rate review process for smaller 
cases.
    \55\ Carriers must file a notice indicating their intent to 
participate in the program no later than 20 days from the effective 
date of today's decision. See Arb. Final Rule, EP 765, slip op. at 
7.
---------------------------------------------------------------------------

    Though Arbitration Final Rule raises legitimate fairness concerns 
that, absent its participation condition, some shippers would have 
access to the program and therefore see advantages over other shippers, 
it fails to recognize that--in voluntary settings like this program--it 
is always the case that some shippers could benefit from the actions 
taken by one carrier and not another. Indeed, this type of outcome 
already

[[Page 728]]

happens in the private sector, under the auspices of the Board, and in 
Arbitration Final Rule itself. First, in the private sector, an 
individual rail carrier may offer shippers an alternative dispute 
resolution mechanism not available to other shippers. For example, BNSF 
participates in a rate dispute arbitration program in Montana, even 
though similarly situated shippers on other carriers have no access to 
such a program.\56\ Second, the Board has long allowed partial industry 
participation in its existing arbitration program, implemented under 
the same statute as this new program. Notably, some Class I carriers 
have agreed to arbitrate matters such as demurrage, even though all 
Class I carriers have not similarly opted in.\57\ Third, Arbitration 
Final Rule itself permits partial participation among Class I carriers 
because it allows the new program to continue even if a Class I carrier 
opts out upon a material change in law. See Arbitration Final Rule, EP 
765, slip op. at 26. Arbitration Final Rule's argument that it is 
requiring universality among Class I carriers at the start of the 
program ignores that, in some circumstances, shippers may not have 
access to the new program if they use a Class I carrier that connects 
to a Class II or III carrier. See Arbitration Final Rule, EP 765, slip 
op. at 21-22, 21 nn.17-18. Implicit across these examples of partial 
participation is that the Board generally--and, in some circumstances, 
in Arbitration Final Rule specifically--has found that the benefits of 
an arbitration program for some shippers outweighs concerns that the 
program is not available to all shippers. I share this view and, 
consistent with longstanding policy,\58\ I favor alternative dispute 
resolution wherever possible.
---------------------------------------------------------------------------

    \56\ See Montana Grain Growers Association, Alternative Dispute 
Resolution, https://www.mgga.org/policy/rail_adr/ (last visited Dec. 
16, 2022).
    \57\ To date, three Class I carriers have opted into the Board's 
arbitration program for certain types of disputes (though not rate 
disputes), but the program has never been used. See UP Notice (June 
21, 2013), CSXT Notice (June 28, 2019), and CN Notice (July 1, 
2019), Assessment of Mediation & Arb. Procs., EP 699.
    \58\ See, e.g., 49 CFR 1108.3.
---------------------------------------------------------------------------

    By pursuing its ideal of universal participation by Class I 
carriers, Arbitration Final Rule may unintentionally prevent the 
arbitration program from taking effect. All Class I rail carriers have 
previously indicated some level of willingness to participate in an 
arbitration program to resolve small rate disputes.\59\ At the same 
time, however, carriers have made it clear that they think FORR is 
unlawful,\60\ and--individually or collectively--they will almost 
certainly appeal FORR Final Rule. As a result, the participation 
condition, when paired with FORR, may be counterproductive because--
though some carriers may opt into the new arbitration program 
initially--a Class I carrier may choose to forego participation in the 
program for strategic reasons. Such a decision by one carrier would 
prevent the implementation of the new arbitration program for all 
willing participants, and--if FORR is overturned--shippers may end up 
with no additional avenue for relief. The Board could have easily 
eliminated this dynamic by not finalizing FORR and instead simply 
waiting to see, in short order, whether all Class I carriers opt into 
the arbitration program. As an alternative that also could have allowed 
the program to take effect, leaving open the possibility of universal 
participation, Arbitration Final Rule could have included an annual 
opt-in period, providing carriers additional opportunities to opt-in 
after the conclusion of the likely court proceedings in FORR. 
Arbitration Final Rule finds that arbitration has advantages over FORR, 
and these alternatives may be welfare-improving because they would very 
likely increase the availability of the program.
---------------------------------------------------------------------------

    \59\ (See Joint Carriers, Petition (filed by CSX, NS, UP, CN, 
and KCS); Canadian Pacific, Comment, Jan. 25, 2021 (indicating 
willingness to participate in a workable, reasonable, accessible 
arbitration program for small rates cases); BNSF, Comment, Jan. 14, 
2022 (indicting willingness to participate in a workable arbitration 
program for small rate disputes).)
    \60\ See, e.g., AAR Comment, Oct. 22, 2019, Final Offer Rate 
Rev., EP 755 et al.
---------------------------------------------------------------------------

    Though the program includes features that may dissuade a carrier 
from participating,\61\ Arbitration Final Rule otherwise balances the 
goal of broad participation with the need for a fair, workable program. 
That is why I have chosen to vote for the program despite my concerns 
about its participation condition paired with the simultaneous issuance 
of FORR. The program offers shippers a low-cost path to rate relief, 
and--as shippers have sought--it does not foreclose the development of 
a new or revised methodology. These features raise uncertainty and risk 
for carriers, but the program--unlike FORR--does not subject litigants 
to unduly intensified and unequal pressures. Indeed, because the 
program allows the arbitration panel to exercise discretion to devise 
welfare-enhancing remedies, and arbitration decisions are confidential 
and non-precedential, the program does not present the potential for 
significant negative consequences for our nation's rail network. As is 
often the case in programs intent on securing participation among 
groups with competing interests, Arbitration Final Rule adopts no 
party's suggestions in total, but--if parties set aside their own ideal 
solutions, as the Board should have here--the broader public will 
benefit from a more efficient approach to contentious, complex 
disputes.
---------------------------------------------------------------------------

    \61\ The carriers have raised understandable concerns about the 
NPRM's approach to revenue adequacy, but they did not suggest--and 
the Board does not have--a clear definition and reliable process to 
differentiate the types of evidence and methodologies that should be 
included, or excluded, from the program. However, in this instance, 
the Board nonetheless provided guidance, including clarifying the 
limited applicability of the Board's appellate decisions.
---------------------------------------------------------------------------

BOARD MEMBER SCHULTZ, commenting:
    The Board issued two decisions today to create two new rate review 
processes. The goals of both Final Offer Rate Review (FORR) in Docket 
No. EP 755 and the small rate case arbitration program (Arbitration) in 
this docket are to reduce the cost and complexity of small rate 
disputes. I am writing separately to underscore that in my opinion, the 
Board's intended goals are only met through the issuance of 
Arbitration. I am also writing to express my concern with one of the 
aspects of Arbitration--the requirement that all Class I carriers must 
participate for the program to become effective.
    Arbitration exempts participating carriers from FORR, but 
Arbitration as a program is only available if all Class I carriers 
agree to participate. See, e.g., Arbitration Final Rule, EP 765, slip 
op. at 6-7. This means that if even one carrier decides not to sign up 
for Arbitration due to, for instance, the belief that FORR is unlawful 
and will be reversed on appeal, then Arbitration will not take effect 
and we will never know if it would have been successful. The Board's 
all-or-nothing approach ensures that not only will one of these 
programs not be used, but the time and energy that Board staff as well 
as stakeholders dedicated to advancing that program and providing 
multiple rounds of comments will have served no purpose. Creating two 
programs and using only one is not an efficient use of either the 
government's or stakeholders' resources.\62\
---------------------------------------------------------------------------

    \62\ The Board did not need to adopt both rules simultaneously. 
If all carriers choose to participate in Arbitration within the next 
fifty days, FORR is not needed. If they do not, then the Board could 
adopt FORR the next day. I fear this is an instance where the threat 
of action would have been stronger than the action itself, as the 
unadopted FORR would not be subject to appeal.
---------------------------------------------------------------------------

    But beyond that, the requirement that all Class I carriers 
participate unnecessarily increases the risk that, in

[[Page 729]]

the event that a single Class I carrier declines to participate in 
Arbitration and FORR is reversed on appeal, shippers will be left with 
nothing but the Board's current methodologies, which remain 
underutilized. The carriers have been steadfast in their opposition to 
FORR since the rulemaking began, and FORR is all but certain to be 
appealed. See, e.g., Ass'n of Am. R.Rs. Letter 2, Oct. 22, 2019, Final 
Offer Rate Review, EP 755 (``The railroad industry will forcefully 
oppose the fundamentally flawed, arbitrary process proposed in the FORR 
NPRM.''). As demonstrated by my dissent from the FORR decision, I 
believe that the arguments against FORR may have merit and that the 
carriers could in fact prevail on appeal.
    Although I strongly disagree with the requirement that all Class I 
carriers participate in order for Arbitration to take effect, I am 
voting to create the Arbitration program because it resolves several 
deficiencies inherent in FORR. If Arbitration takes effect, it will 
provide the opportunity for an expedited rate review process for small 
rate cases that permits decision makers to set maximum reasonable rates 
that deviate from the two submitted proposals and greatly reduces the 
risk of inconsistent and unpredictable rate setting across the network.

Kenyatta Clay,
Clearance Clerk.

List of Subjects

49 CFR Part 1011

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies).

49 CFR Part 1108

    Administrative practice and procedure, Railroads.

49 CFR Part 1115

    Administrative practice and procedure.

49 CFR Part 1244

    Freight, Railroads, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Surface 
Transportation Board amends parts 1011, 1108, 1115, and 1244 of title 
49, chapter X, of the Code of Federal Regulations as follows:

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

0
1. The authority citation for part 1011 continues to read as follows:

    Authority:  5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 1301, 1321, 
11123, 11124, 11144, 14122, and 15722.


0
2. Amend Sec.  1011.7 by revising paragraph (a)(2)(xix) and adding 
paragraph (b)(7) to read as follows:


Sec.  1011.7  Delegations of authority by the Board to specific offices 
of the Board.

    (a) * * *
    (2) * * *
    (xix) To order arbitration of program-eligible matters under the 
Board's regulations at 49 CFR part 1108, subpart A, or upon the mutual 
request of parties to a proceeding before the Board.
    (b) * * *
    (7) Perform any arbitration duties specifically assigned to the 
Office of Public Assistance, Governmental Affairs, and Compliance or 
its Director in 49 CFR part 1108, subpart B.

PART 1108--ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY 
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD

0
3. The authority citation for part 1108 continues to read as follows:

    Authority:  49 U.S.C. 11708, 49 U.S.C. 1321(a), and 5 U.S.C. 571 
et seq.


Sec.  Sec.  1108.1 through 1108.13  [Designated as Subpart A]

0
4. Designate Sec. Sec.  1108.1 through 1108.13 as subpart A and add a 
heading for subpart A to read as follows:

Subpart A--General Arbitration Procedures


Sec.  1108.1  [Amended]

0
5. Amend Sec.  1108.1 by:
0
a. Removing the word ``part'' wherever it appears and adding 
``subpart'' in its place; and
0
b. In paragraphs (a) and (b), removing ``these rules'' and adding 
``this subpart'' in its place.


Sec.  Sec.  1108.3, 1108.7, and 1108.8  [Amended]

0
6. In addition to the amendments set forth above, in 49 CFR part 1108, 
remove the word ``part'' and add in its place the word ``subpart'' in 
the following places:
0
a. Section 1108.3(a)(1)(ii);
0
b. Section 1108.7(d); and
0
c. Section 1108.8(a).

0
7. Add subpart B to read as follows:
Subpart B--Voluntary Program for Arbitration of Small Freight Rail Rate 
Disputes
Sec.
1108.21 Definitions.
1108.22 Statement of purpose, organization, and jurisdiction.
1108.23 Participation in the Small Rate Case Arbitration Program.
1108.24 Use of the Small Rate Case Arbitration Program.
1108.25 Arbitration initiation procedures.
1108.26 Arbitrators.
1108.27 Arbitration procedures.
1108.28 Relief.
1108.29 Decisions.
1108.30 No precedent.
1108.31 Enforcement and appeals.
1108.32 Assessment of the Small Rate Case Arbitration Program.
1108.33 Exemption from Final Offer Rate Review.

Subpart B--Voluntary Program for Arbitration of Small Freight Rail 
Rate Disputes


Sec.  1108.21  Definitions.

    As used in this subpart:
    (a) Arbitrator means a single person appointed to arbitrate under 
this subpart.
    (b) Arbitration panel means a group of three people appointed to 
arbitrate under this subpart.
    (c) Arbitration decision means the decision of the arbitration 
panel served on the parties as set forth in Sec.  1108.27(c)(3).
    (d) Complainant means a party that seeks to challenge the 
reasonableness of a rate charged by a rail carrier using the Small Rate 
Case Arbitration Program, including rail shippers.
    (e) Final offer rate review means the Final Offer Rate Review 
process for determining the reasonableness of railroad rates.
    (f) Lead arbitrator means the third arbitrator selected by the two 
party-appointed arbitrators or, if the two party-appointed arbitrators 
cannot agree, an individual selected from a list of individuals jointly 
developed by the parties and using the procedures to select from this 
list, as set forth in Sec.  1108.26(c)(3).
    (g) Limit price test means the methodology for determining market 
dominance described in M&G Polymers USA, LLC v. CSX Transp., Inc., NOR 
42123, slip op. at 11-18 (STB served Sept. 27, 2012).
    (h) Participating railroad or participating carrier means a 
railroad that has voluntarily opted into the Small Rate Case 
Arbitration Program pursuant to Sec.  1108.23(a).
    (i) Party-appointed arbitrator means the arbitrator selected by 
each party pursuant to the process described in Sec.  1108.26(b).
    (j) Rate disputes are disputes involving the reasonableness of a 
rail carrier's rates.
    (k) Small Rate Case Arbitration Program means the program 
established by the Surface Transportation Board in this subpart.

[[Page 730]]

    (l) STB or Board means the Surface Transportation Board.
    (m) STB-maintained roster means the roster of arbitrators 
maintained by the Board, as required by Sec.  1108.6(b), under the 
Board's arbitration program established pursuant to 49 U.S.C. 11708 and 
set forth in subpart A of this part.
    (n) Streamlined market dominance test means the methodology set 
forth in 49 CFR 1111.12.


Sec.  1108.22  Statement of purpose, organization, and jurisdiction.

    (a) The Board's intent. The Board favors the resolution of disputes 
through the use of mediation and arbitration procedures, in lieu of 
formal Board proceedings, whenever possible. This subpart establishes a 
binding and voluntary arbitration program, the Small Rate Case 
Arbitration Program, that is tailored to rate disputes and open to all 
parties eligible to bring or defend rate disputes before the Board.
    (1) The Small Rate Case Arbitration Program serves as an 
alternative to, and is separate and distinct from, the broader 
arbitration program set forth in subpart A of this part.
    (2) By participating in the Small Rate Case Arbitration Program, 
parties consent to arbitrate rail rate disputes subject to the limits 
on potential liability set forth in Sec.  1108.28.
    (3) The Small Rate Case Arbitration Program will become operative 
only if all Class I carriers initially commit to participate in the 
program. Class I carriers that participate in the program agree to 
arbitrate rate disputes that meet the requirements of this subpart for 
a term of five years from the date the program becomes effective.
    (4) In the event the Small Rate Case Arbitration program becomes 
operative, Class I carriers that participate will be exempt from having 
their rates challenged under Final Offer Rate Review, pursuant to Sec.  
1108.33, as long as they remain in the program.
    (b) Establishment and Term of the Small Rate Case Arbitration 
Program--(1) The regulations contained in this subpart will not become 
operable until the Board issues a notice in the Federal Register 
commencing the Small Rate Case Arbitration Program. A copy of the 
notice will also be issued in Docket No. EP 765 and will be posted on 
the Board's website.
    (2) The Board will promptly issue the notice commencing the 
arbitration program upon receipt of the required opt-in notices 
specified in Sec.  1108.23(a) from all existing Class I carriers. If 
the Board does not receive opt-in notices from all existing Class I 
carriers, the notice will not be issued and the regulations in this 
subpart will not become operable, including any exemption from FORR. 
The notice will establish an initial five-year term for the program, 
beginning from the date the notice is issued.
    (3) Class I carriers must indicate whether they choose to 
voluntarily participate in the Small Rate Case Arbitration Program by 
February 23, 2023, by filing the notice specified in Sec.  1108.23(a) 
with the Board.
    (c) Renewal of the Small Rate Case Arbitration Program.--(1) 
Approximately 60 days before the five-year term expires, the Board will 
issue another notice in the Federal Register, requesting that all 
existing Class I carriers that wish to participate in the program for 
another 5-year period file an opt-in notice pursuant to Sec.  
1108.23(a).
    (2) The Small Rate Case Arbitration Program will become operative 
for an additional 5-year period only if all Class I carriers again 
commit to participate in the program. This requirement will apply even 
if one or more of the Class I carriers has previously withdrawn from 
the program pursuant to Sec.  1108.23(c).
    (3) The Board will promptly issue a notice in the Federal Register 
renewing the Small Rate Case Arbitration Program for an additional five 
years upon receipt of the required opt-in notices specified in Sec.  
1108.23(a) from all existing Class I carriers. The regulations 
contained in this subpart will only remain operative if the Board 
issues such a notice. If the program is renewed, all of the regulations 
within this subpart shall remain in effect for the entirety of the 5-
year renewal period, with the exception of Sec.  1108.32.
    (4) The Board will repeat this process to renew the arbitration 
program every five years for as long as the program remains in effect.
    (5) At the end of any five-year period, if the arbitration program 
is not renewed, any pending arbitrations will continue until they are 
completed.
    (d) Limitations to the use of the Small Rate Case Arbitration 
Program. The Small Rate Case Arbitration Program may be used only for 
rate disputes within the statutory jurisdiction of the Board.
    (e) No limitation on other avenues of arbitration. Nothing in this 
subpart shall be construed in a manner to prevent parties from 
independently seeking or utilizing private arbitration services to 
resolve any disputes they may have.


Sec.  1108.23  Participation in the Small Rate Case Arbitration 
Program.

    (a) Carrier opt-in procedures--(1) Opt-in notice. To opt into the 
Small Rate Case Arbitration Program, a carrier must file a notice with 
the Board under Docket No. EP 765, notifying the Board of the carrier's 
consent to participate in the Small Rate Case Arbitration Program. Such 
notice must be filed by February 23, 2023. The notice should also 
include:
    (i) A statement that the carrier agrees to an extension of the 
timelines set forth in 49 U.S.C. 11708(e) for any arbitrations 
initiated under this subpart; and
    (ii) A statement that the carrier agrees to the appointment of 
arbitrators that may not be on the STB-maintained roster of arbitrator 
established under Sec.  1108.6(b).
    (2) Participation for a specified term. By opting into the Small 
Rate Case Arbitration Program, the carrier consents to participate in 
the program for the full five-year term of the program, beginning on 
the date the Board issues the notice commencing the program. A carrier 
may withdraw from the Program prior to expiration of the five-year term 
only pursuant to paragraph (c) of this section.
    (3) Public notice of carrier participants. The Board shall maintain 
a list of carriers who have opted into the Small Rate Case Arbitration 
Program on its website at www.stb.gov.
    (4) Class II and Class III carrier participation. Class II or Class 
III rail carriers may consent to use the Small Rate Case Arbitration 
Program to arbitrate an individual rate dispute, even if the Class II 
or Class III has not opted into the process under paragraph (a)(1) of 
this section. If a Class II or Class III carrier intends to participate 
for an individual rate dispute, a letter from the Class II or Class III 
carrier must be submitted with the notice of intent to arbitrate 
dispute required under Sec.  1108.25(a). The letter must indicate that 
the carrier consents to participate in the Small Rate Case Arbitration 
Program and include the statements required under paragraphs (a)(1)(i) 
and (ii) of this section.
    (b) Complainant participation. A complainant seeking to challenge 
the reasonableness of carrier's rate may participate in the Small Rate 
Case Arbitration Program on a case-by-case basis by notifying a 
participating carrier that it wishes to arbitrate an eligible dispute 
under the Small Rate Case Arbitration Program. A complainant must 
inform the participating carrier by submitting a written notice of 
intent to

[[Page 731]]

arbitrate to the participating carrier, as set forth in Sec.  
1108.25(a).
    (c) Withdrawal for change in law--(1) Basis for withdrawal. A 
carrier or complainant participating in the Small Rate Case Arbitration 
Program may withdraw its consent to arbitrate under this subpart if 
either: material change(s) are made to the Small Rate Case Arbitration 
Program under this subpart after a complainant or carrier has opted 
into the Small Rate Case Arbitration Program; or material change(s) are 
made to the Board's existing rate reasonableness methodologies or a new 
rate reasonableness methodology is created after a complainant or 
carrier has opted into the Small Rate Case Arbitration Program. 
However, the termination or modification of the Final Offer Rate Review 
process will not be considered a change in law.
    (2) Procedures for withdrawal for change in law. A participating 
carrier or complainant may withdraw its consent to arbitrate under this 
subpart by filing with the Board a notice of withdrawal for change in 
law within 20 days of an event that qualifies as a basis for withdrawal 
as set forth in paragraph (c)(1) of this section.
    (i) The notice of withdrawal for change in law shall state the 
basis or bases under paragraph (c)(1) of this section for the party's 
withdrawal of its consent to arbitrate under this part. A copy of the 
notice must be served on any parties with which the carrier is 
currently engaged in arbitration. A copy of the notice will also be 
posted on the Board's website.
    (ii) Any party may challenge the withdrawing party's withdrawal for 
change in law on the ground that the change is not material by filing a 
petition with the Board within 10 days of the filing of the notice of 
withdrawal being challenged. The withdrawing party may file a reply to 
the petition within 5 days from the filing of the petition. The 
petition shall be resolved by the Board within 14 days from the filing 
deadline for the withdrawing party's reply.
    (iii) Subject to the stay provision of paragraph (c)(3)(ii) of this 
section, the notice of withdrawal for change in law shall be effective 
on the day of its filing.
    (3) Effect of withdrawal for change in law--(i) The Small Rate Case 
Arbitration Program. If one or more Class I carriers withdraw, the 
program will not terminate and the regulations in this subpart will 
remain in effect. Carriers that withdraw from the program will no 
longer be subject to the exemption (set forth in Sec.  1108.33) from 
rate challenges under Final Offer Rate Review.
    (ii) Arbitrations with decision. The withdrawal of consent for 
change in law by either a complainant or carrier shall not affect 
arbitrations in which the arbitration panel has issued an arbitration 
decision.
    (iii) Arbitrations without decision. A carrier or complainant 
filing a withdrawal of consent for change in law shall immediately 
inform the arbitration panel and opposing party. The arbitration panel 
shall immediately stay the arbitration. If no objection to the 
withdrawal of consent is filed with the Board or the Board issues a 
decision granting the withdrawal request, the arbitration panel shall 
dismiss any pending arbitration under this part, unless the change in 
law will not take effect until after the arbitration panel is scheduled 
to issue its decision pursuant to the schedule set forth in Sec.  
1108.27(c). If an objection to the withdrawal of consent is filed but 
the Board rejects the withdrawal upon objection, the arbitration panel 
shall lift the stay, the arbitration shall continue, and all procedural 
time limits will be tolled.
    (d) Limit on the number of arbitrations. A carrier participating in 
the Small Rate Case Arbitration Program is only required to participate 
in 25 arbitrations simultaneously. Any arbitrations initiated by the 
submission of the notice of intent to arbitrate a dispute to the rail 
carrier (pursuant to Sec.  1108.25(a)) that has reached this limit will 
be postponed until the carrier is once again below the limit.
    (1) A carrier that has reached the limit shall notify the Board's 
Office of Public Assistance, Governmental Affairs, and Compliance by 
email (to [email protected]), as well as the complainant who submitted the 
notice of intent to arbitrate to the carrier. The Office of Public 
Assistance, Governmental Affairs, and Compliance shall confirm that the 
limitation has been reached and inform the complainant (and any other 
subsequent complainants) that the arbitration is being postponed, along 
with an approximation of when the arbitration can proceed and 
instructions for reactivating the arbitration once the carrier is again 
below the limit.
    (2) For purposes of this paragraph (d), an arbitration will count 
toward the 25-arbitration limit only upon commencement of the first 
mediation session or, where one or both parties elect to forgo 
mediation, submission of the joint notice of intent to arbitrate to the 
Board under Sec.  1108.25(c). For purposes of this paragraph (d), an 
arbitration under this subpart is final when the arbitration panel 
issues its arbitration decision, or if an arbitration is dismissed or 
withdrawn, including due to settlement.


Sec.  1108.24  Use of the Small Rate Case Arbitration Program.

    (a) Eligible matters. The arbitration program under this subpart 
may be used only in the following instances:
    (1) Rate disputes involving shipments of regulated commodities not 
subject to a rail transportation contract are eligible to be arbitrated 
under this subpart. If the parties dispute whether a challenged rate 
was established pursuant to 49 U.S.C. 10709, the parties must petition 
the Board to resolve that dispute, which must be resolved before the 
parties initiate the arbitration process under this part.
    (2) A complainant may challenge rates for multiple traffic lanes 
within a single arbitration under this part, subject to the relief cap 
in Sec.  1108.28 for all lanes.
    (3) For movements in which more than one carrier participates, 
arbitration under this subpart may be used only if all carriers agree 
to participate (pursuant to Sec.  1108.23(a)(1) or (4)).
    (b) Eligible parties. Any party eligible to bring or defend a rate 
dispute before the Board is eligible to participate in the arbitration 
program under this part.
    (c) Use limits. A complainant may not bring separate arbitrations 
for shipments with the same origin-destination or shipments where 
facilities are shared.
    (d) Arbitration clauses. Nothing in the Board's regulations in this 
part shall preempt the applicability of, or otherwise supersede, any 
new or existing arbitration clauses contained in agreements between 
complainants and carriers.


Sec.  1108.25  Arbitration initiation procedures.

    (a) Notice of complainant intent to arbitrate dispute. To initiate 
the arbitration process under this subpart against a participating 
carrier, a complainant must notify the carrier in writing of its intent 
to arbitrate a dispute under this part. The notice must include: a 
description of the dispute sufficient to indicate that the dispute is 
eligible to be arbitrated under this part; a statement that the 
complainant consents to extensions of the timelines set forth in forth 
in 49 U.S.C. 11708(e); and a statement that the complainant consents to 
the appointment of arbitrators that may not be on the STB-maintained 
roster of arbitrators established under Sec.  1108.6(b). The 
complainant must also submit a copy of the notice to the Board's Office 
of Public Assistance, Governmental Affairs, and Compliance by email to 
[email protected]. Upon receipt of the notice of intent to arbitrate, the 
Office of Public

[[Page 732]]

Assistance, Governmental Affairs, and Compliance will provide a letter 
to both parties confirming that the arbitration process has been 
initiated, and that the parties have consented to extension of the 
timelines set forth in 49 U.S.C. 11708(e) and the potential appointment 
of arbitrators not on the Board's roster. The notice and confirmation 
letter from the Office of Public Assistance, Governmental Affairs, and 
Compliance will be confidential and specific information regarding 
pending arbitrations, including the identity of the parties, will not 
be disseminated within the Board beyond the alternative dispute 
resolution functions within the Office of Public Assistance, 
Governmental Affairs, and Compliance.
    (b) Pre-arbitration mediation. (1) Prior to commencing arbitration, 
the parties to the dispute may engage in mediation if they mutually 
agree.
    (2) Such mediation will not be conducted by the STB. The parties to 
the dispute must jointly designate a mediator and schedule the 
mediation session(s).
    (3) If the parties mutually agree to mediate, the parties must 
schedule mediation promptly and in good faith. The mediation period 
shall end 30 days after the date of the first mediation session, unless 
both parties agree to a different period.
    (c) Joint Notice of Intent to Arbitrate. (1) To arbitrate a rate 
dispute under this subpart, the parties must submit a Joint Notice of 
Intent to Arbitrate with the Board's Office of Public Assistance, 
Governmental Affairs, and Compliance, indicating the parties' intent to 
arbitrate under the Small Rate Case Arbitration Program. The parties 
must submit a copy of the notice to the Board's Office of Public 
Assistance, Governmental Affairs, and Compliance by email to 
[email protected]. The joint notice must be filed not later than two 
business days following the date on which mediation ends or, in cases 
in which the parties mutually agree not to engage in mediation, two 
business days after the complainant submits its notice of intent to 
arbitrate (required by paragraph (a) of this section) to the carrier.
    (2) The joint notice shall set forth the following information:
    (i) The basis for the Board's jurisdiction; and
    (ii) The basis for the parties' eligibility to use the Small Rate 
Case Arbitration Program, including: that the dispute being arbitrated 
is solely a rate dispute involving shipments of regulated commodities 
not subject to a rail transportation contract; that the carrier has 
opted into the Small Rate Case Arbitration Program; that the 
complainant has elected to use the Small Rate Case Arbitration Program 
for this particular rate dispute; and that the complainant does not 
have any other pending arbitrations at that time against the defendant 
carrier.
    (3) The joint notice shall be confidential and will not be 
published on the Board's website and specific information regarding 
pending arbitrations, including the identity of the parties, will not 
be disseminated within the Board beyond the alternative dispute 
resolution functions within the Office of Public Assistance, 
Governmental Affairs, and Compliance.
    (4) Unless the parties have agreed not to request the Waybill 
Sample data pursuant allowed under Sec.  1108.27(g), the parties must 
also submit a copy of the Joint Notice of Intent to Arbitrate to the 
Director of the Board's Office of Economics. Parties may submit the 
letter and copy of the joint notice by email to [email protected].


Sec.  1108.26  Arbitrators.

    (a) Decision by arbitration panel. All matters arbitrated under 
this subpart shall be resolved by a panel of three arbitrators.
    (b) Party-appointed arbitrators. Within two business days of filing 
the Joint Notice of Intent to Arbitrate, each side shall select one 
arbitrator as its party-appointed arbitrator and notify the opposing 
side of its selection.
    (1) For-cause objection to party-appointed arbitrator. Each side 
may object to the other side's selected arbitrator within two business 
days and only for cause. A party may make a for-cause objection where 
it has reason to believe a proposed arbitrator cannot act with the good 
faith, impartiality, and independence required of 49 U.S.C. 11708, 
including due to a conflict of interest, adverse business dealings with 
the objecting party, or actual or perceived bias or animosity toward 
the objecting party.
    (i) The parties must confer over the objection within two business 
days.
    (ii) If the objection remains unresolved after the parties confer, 
the objecting party shall immediately file an Objection to Party-
Appointed Arbitrator with the Office of Public Assistance, Governmental 
Affairs, and Compliance. The Office of Public Assistance, Governmental 
Affairs, and Compliance shall arrange for a telephonic or virtual 
conference to be held before an Administrative Law Judge within two 
business days, or as soon as is practicable, to hear arguments 
regarding the objection(s). The Administrative Law Judge will provide 
its ruling in an order to all parties by the next business day after 
the telephonic or virtual conference.
    (iii) The Objection to Party-Appointed Arbitrator filed with Office 
of Public Assistance, Governmental Affairs, and Compliance and the 
telephonic or virtual conference, including any ruling on the 
objection, shall be confidential.
    (2) Costs for party-appointed arbitrators. Each side is responsible 
for the costs of its own party-appointed arbitrator.
    (c) Lead arbitrator--(1) Appointment. Once appointed, the two 
party-appointed arbitrators shall, without delay, select a lead 
arbitrator from a joint list of arbitrators provided by the parties.
    (2) Qualifications. The lead arbitrator must be a person with rail 
transportation, economic regulation, professional or business 
experience, including agriculture, in the private sector, and must have 
training in dispute resolution and/or experience in arbitration or 
other forms of dispute resolution.
    (3) Disagreement selecting the lead arbitrator. If the two party-
appointed arbitrators cannot agree on a selection for the lead 
arbitrator, the parties will develop a joint list of potential lead 
arbitrators. Each side may include the names of three individuals that 
meet the qualification requirement of (c)(2). Both sides will then be 
permitted to strike the names of two individuals proposed by the 
opposing side. The lead arbitrator shall be selected from the two names 
that remain using a random selection process, which will be 
administrated by the Director of the Office of Public Assistance, 
Governmental Affairs, and Compliance.
    (4) Lead arbitrator role. The lead arbitrator will be responsible 
for ensuring that the tasks detailed in Sec. Sec.  1108.27 and 1108.29 
are accomplished. The lead arbitrator shall establish all rules deemed 
necessary for each arbitration proceeding, including with regard to 
discovery, the submission of evidence, and the treatment of 
confidential information, subject to the requirements of the rules of 
this subpart.
    (5) Costs. The parties to the arbitration will share the cost of 
the lead arbitrator equally.
    (d) Arbitrator choice. The parties may choose their arbitrators 
without limitation, provided that any arbitrator chosen must be able to 
comply with paragraph (f) of this section. The arbitrators may, but are 
not required to, be selected from the STB-maintained roster described 
in Sec.  1108.6(b).
    (e) Arbitrator incapacitation. If at any time during the 
arbitration process an arbitrator becomes incapacitated or is

[[Page 733]]

unwilling or unable to fulfill his or her duties, a replacement 
arbitrator shall be promptly selected by the following process:
    (1) If the incapacitated arbitrator was a party-appointed 
arbitrator, the appointing party shall, without delay, appoint a 
replacement arbitrator pursuant to the procedures set forth in 
paragraph (b) of this section.
    (2) If the incapacitated arbitrator was the lead arbitrator, a 
replacement lead arbitrator shall be appointed pursuant to the 
procedures set forth in paragraph (c) of this section.
    (f) Arbitrator duties. In an arbitration under this subpart, the 
arbitrators shall perform their duties with diligence, good faith, and 
in a manner consistent with the requirements of impartiality and 
independence.


Sec.  1108.27  Arbitration procedures.

    (a) Appointment of arbitration panel. Within two business days 
after all three arbitrators are selected, the parties shall appoint the 
arbitration panel in writing. A copy of the written appointment should 
be submitted to the Director of the Board's Office of Economics. The 
Director shall promptly provide the arbitrators with the 
confidentiality agreements that are required under Sec.  1244.9(b)(4) 
of this chapter to review confidential Waybill Sample data.
    (b) Commencement of arbitration process; arbitration agreement. 
Within two business days after the arbitration panel is appointed, the 
lead arbitrator shall commence the arbitration process in writing. 
Shortly after commencement, the parties, together with the panel of 
arbitrators, shall create a written arbitration agreement, which at a 
minimum will state with specificity the issues to be arbitrated and the 
corresponding monetary award cap to which the parties have agreed. The 
arbitration agreement shall also incorporate by reference the rules of 
this subpart. The agreement may also contain other mutually agreed upon 
provisions.
    (c) Expedited timetables--(1) Discovery phase. The parties shall 
have 45 days from the written commencement of arbitration by the lead 
arbitrator to complete discovery. The arbitration panel may extend the 
discovery phase upon an individual party's request. If the discovery 
phase is extended, the arbitration panel may decide whether the 
evidentiary phase should also be extended and, if so, for how long.
    (2) Evidentiary phase. The evidentiary phase consists of the 45-day 
discovery phase described in paragraph (c)(1) of this section and an 
additional 45 days for the submission of pleadings or evidence, based 
on the procedural schedule and using the procedures adopted by the lead 
arbitrator, for a total duration of 90 days. The evidentiary phase 
(including the discovery phase) shall begin on the written commencement 
of the arbitration process under paragraph (b) of this section. The 
arbitration panel shall have complete discretion whether to extend the 
procedural schedule, based on input from the parties.
    (3) Decision. The unredacted arbitration decision, as well as any 
redacted version(s) of the arbitration decision as required by Sec.  
1108.29(a)(2), shall be served on the parties within 30 days from the 
end of the evidentiary phase.
    (d) Limited discovery. (1) Discovery under this subpart shall be 
limited to 20 written document requests and 5 interrogatories. 
Depositions shall not be permitted.
    (2) Each party is permitted an additional 3 written document 
request and 3 interrogatories if the defendant carrier(s) does not 
concede market dominance and the complainant elects to use a non-
streamlined market dominance analysis.
    (3) Parties may request permission from the arbitration panel to 
seek additional written document requests and interrogatories. The 
arbitration panel may grant such requests for exceptional 
circumstances.
    (e) Evidentiary guidelines--(1) Principles of due process. The lead 
arbitrator shall adopt rules that comply with the principles of due 
process, including but not limited to, allowing the defendant carrier a 
fair opportunity to respond to the complainant's case-in-chief.
    (2) Inadmissible evidence. The following evidence shall be 
inadmissible in an arbitration under this part:
    (i) On the issue of market dominance, any evidence that would be 
inadmissible before the Board; and
    (ii) Any non-precedential decisions, including prior decisions 
issued by an arbitration panel.
    (f) Confidentiality agreement. All arbitrations under this subpart 
shall be governed by a confidentiality agreement, unless the parties 
agree otherwise. With the exception of the Waybill Sample provided 
pursuant to paragraph (g) of this section, the terms of the 
confidentiality agreement shall apply to all aspects of an arbitration 
under this part, including but not limited to discovery, party filings, 
and the arbitration decision.
    (g) Waybill Sample. (1) The Board's Office of Economics shall 
provide unmasked confidential Waybill Sample data to each party to the 
arbitration proceeding within seven days of the filing of a copy Joint 
Notice of Intent to Arbitrate with the Director and accompanying letter 
containing the relevant five-digit Standard Transportation Commodity 
Code information. Such data to be provided by the Office of Economics 
shall be limited to the most recent four years of movements on the 
defendant carriers.
    (2) Parties may request additional Waybill Sample data from the 
Director of the Office of Economics pursuant to Sec.  1244.9(b)(4) of 
this chapter. Parties must make such requests by submitting a formal 
filing (with a ``WB'' docket prefix). The decision of the Director may 
be appealed to the Board pursuant to Sec.  1115.1. In the event of an 
appeal, the party filing the appeal shall immediately inform the other 
parties to the arbitration and the arbitration panel. The arbitration 
panel shall immediately stay the arbitration proceeding. After the 
Board issues a decision ruling on the appeal of the Director's 
decision, the arbitration panel shall lift the stay, the arbitration 
shall continue, and all procedural time limits will be tolled. The 
Director's decision (and, if necessary, the Board's decision ruling on 
appeal of the Director's decision) will be published as part of the 
separate Waybill docket, but the decision(s) will not be published 
until the Board receives the confidential summary the parties are 
required to file pursuant to Sec.  1108.29(e).


Sec.  1108.28  Relief.

    (a) Relief available. Subject to the relief limits set forth in 
paragraph (b) of this section, the arbitration panel under this subpart 
may grant relief in the form of monetary damages or a rate 
prescription.
    (b) Relief limits. Any relief awarded by the arbitration panel 
under this subpart shall not exceed $4 million (as indexed annually for 
inflation using the Producer Price Index and a 2007 base year) over two 
years, inclusive of prospective rate relief, reparations for past 
overcharges, or any combination thereof, unless otherwise agreed to by 
the parties. Reparations or prescriptions may not be set below 180% of 
variable cost, as determined by unadjusted Uniform Railroad Costing 
System (URCS).
    (c) Agreement to a different relief cap. For an individual dispute, 
parties may agree by mutual written consent to arbitrate an amount 
above or below the monetary cap in paragraph (b) of this

[[Page 734]]

section, up to $25 million, or for shorter or longer than two years, 
but no longer than 5 years. Parties must inform the Board of such 
agreement in the confidential summary filed at the conclusion of the 
arbitration, as required by Sec.  1108.29(e)(1).
    (d) Relief not available. No injunctive relief shall be available 
in arbitration proceedings under this part.


Sec.  1108.29  Decisions.

    (a) Technical requirements--(1) Findings of fact and conclusions of 
law. An arbitration decision under this subpart shall be in writing and 
shall contain findings of fact and conclusions of law.
    (2) Compliance with confidentiality agreement. The unredacted 
arbitration decision served on the parties in accordance with Sec.  
1108.27(c)(3) shall comply with the confidentiality agreement described 
in Sec.  1108.27(f). As applicable, the arbitration panel shall also 
provide the parties with a redacted version(s) of the arbitration 
decision that redacts or omits confidential and/or highly confidential 
information as required by the governing confidentiality agreement.
    (b) Substantive requirements. The arbitration panel under this 
subpart shall decide the issues of both market dominance and maximum 
lawful rate.
    (1) Market dominance. (i) The arbitration panel shall determine if 
the carrier whose rate is the subject of the arbitration has market 
dominance based on evidence submitted by the parties, unless paragraph 
(b)(1)(vi) of this section applies.
    (ii) Subject to Sec.  1108.27(e)(2), in determining the issue of 
market dominance, the arbitration panel under this subpart shall 
follow, at the complainant's discretion, either the streamlined market 
dominance test or the non-streamlined market dominance test.
    (iii) The arbitration panel shall issue its decision on market 
dominance as part of its final arbitration decision.
    (iv) The arbitration panel shall not consider evidence of product 
and geographic competition when deciding market dominance.
    (v) The arbitration panel shall not consider evidence on the Limit 
Price Test when deciding market dominance.
    (vi) If a carrier concedes that it possesses market dominance, the 
arbitration panel need not make a determination on market dominance and 
need only address the maximum lawful rate in the arbitration decision. 
Additionally, the parties may jointly request that the Board determine 
market dominance prior to initiating arbitration under this part.
    (2) Maximum lawful rate. Subject to the requirements on 
inadmissible evidence in Sec.  1108.27(e)(2), in determining the issue 
of maximum lawful rate, the arbitration panel under this subpart 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 (as determined under 49 
U.S.C. 10704(a)(2)). The arbitration panel may otherwise base its 
decision on the Board's existing rate review methodologies, revised 
versions of those methodologies, new methodologies, or market-based 
factors, including, for example: rate levels on comparative traffic; 
market factors for similar movements of the same commodity; and overall 
costs of providing the rail service. The arbitration panel's decision 
must be consistent with sound principles of rail regulation economics.
    (3) Agency precedent. Decisions rendered by the arbitration panel 
under this subpart may be guided by, but need not be bound by, agency 
precedent.
    (c) Confidentiality of arbitration decision. The arbitration 
decision under this part, whether redacted or unredacted, shall be 
confidential, subject to the limitations set forth in Sec.  1108.31(d).
    (1) No copy of the arbitration decision shall be served on the 
Board except as is required under Sec.  1108.31(a)(1).
    (2) The arbitrators and parties shall have a duty to maintain the 
confidentiality of the arbitration decision, whether redacted or 
unredacted, and shall not disclose any details of the arbitration 
decision unless, and only to the extent, required by law.
    (d) Arbitration decisions are binding. (1) By arbitrating pursuant 
to the procedures under this part, each party to the arbitration agrees 
that the decision and award of the arbitration panel shall be binding 
and judicially enforceable in any court of appropriate jurisdiction, 
subject to the rights of appeal provided in Sec.  1108.31.
    (2) An arbitration decision under this subpart shall preclude the 
complainant(s) from filing any rate complaint for the movements at 
issue in the arbitration or instituting any other proceeding regarding 
the rates for the movements at issue in the arbitration, with the 
exception of appeals under Sec.  1108.31. This preclusion shall last 
until the later of:
    (i) Two years after the Joint Notice of Intent to Arbitrate; or
    (ii) The expiration of the term of any prescription imposed by the 
arbitration decision.
    (3) The preclusion will cease if the carrier increases the rate 
either: after a complainant is unsuccessful in arbitration or after a 
complainant has been awarded a prescription and the prescription has 
expired.
    (e) Confidential summaries of arbitrations; quarterly reports. To 
permit the STB to monitor the Small Rate Case Arbitration Program, the 
parties shall submit a confidential summary of the arbitration to the 
Board's Office of Public Assistance, Governmental Affairs, and 
Compliance (OPAGAC) within 14 days after either the arbitration 
decision is issued, the dispute settles, or the dispute is withdrawn. A 
confidential summary must be filed for any instance in which a 
complainant has submitted to the participating carrier a notice of 
intent to arbitrate, even if the parties did not reach the arbitration 
phase. The confidential summary itself shall not be published. OPAGAC 
will provide copies of the confidential summaries to the Board Members 
and other appropriate Board employees.
    (1) Contents of confidential summary. The confidential summary 
shall provide only the following information to the Board with regard 
to the dispute arbitrated under this part:
    (i) Geographic region of the movement(s) at issue;
    (ii) Commodities shipped;
    (iii) Number of calendar days from the commencement of the 
arbitration proceeding to the conclusion of the arbitration;
    (iv) Resolution of the arbitration, limited to the following 
descriptions: settled, withdrawn, dismissed on market dominance, 
challenged rate(s) found unreasonable/reasonable; and
    (v) Any agreement to a different relief cap or period than set 
forth in Sec.  1108.28(b).
    (2) STB quarterly reports on Small Rate Case Arbitration Program. 
The STB may publish public quarterly reports on the final disposition 
of arbitrated rate disputes under the Small Rate Case Arbitration 
Program.
    (i) If issued, the Board's quarterly reports on the Small Rate Case 
Arbitration Program shall disclose only the five categories of 
information listed in paragraph (e)(1) of this section. The parties to 
the arbitration who filed the confidential summary shall not be 
disclosed.
    (ii) If issued, the Board's quarterly reports on the Small Rate 
Case Arbitration Program shall be posted on the Board's website.

[[Page 735]]

Sec.  1108.30  No precedent.

    Arbitration decisions under this subpart shall have no precedential 
value, and their outcomes and reasoning may not be submitted into 
evidence or argued in subsequent arbitration proceedings conducted 
under this subpart or in any Board proceeding, except an appeal of the 
arbitration decision under Sec.  1108.31.


Sec.  1108.31  Enforcement and appeals.

    (a) Appeal to the Board--(1) Petition to vacate or modify 
arbitration decision. A party appealing the arbitration decision shall 
file under seal a petition to modify or vacate the arbitration 
decision, setting forth its full argument for vacating or modifying the 
decision. The petition to vacate or modify the arbitration decision 
must be filed within 20 days from the date on which the arbitration 
decision was served on the parties. The party appealing must include 
both a redacted and unredacted copy of the arbitration decision. The 
petition shall be subject to the page limitations of Sec.  1115.2(d) of 
this chapter.
    (2) Replies. Replies to the petition shall be filed under seal 
within 20 days of the filing of the petition to vacate or modify with 
the Board. Replies shall be subject to the page limitations of Sec.  
1115.2(d) of this chapter.
    (3) Content and confidentiality of filings; public docket. All 
submissions for appeals of the arbitration decision to the Board shall 
be filed under seal. After the party has submitted its filing to the 
Board under seal, the party shall prepare a public version of the 
filing with any information having an effect or impact on the 
marketplace redacted. A party may also attach to its petition or reply 
excerpts from any materials from the underlying arbitration record that 
are necessary support for its petition or reply. Such attachments will 
be treated as confidential and will not count toward the page limit set 
forth in 49 CFR 1115.2. The party will then provide the opposing party 
an opportunity to request further redactions. After consulting with the 
opposing party on redactions, the party shall file the public version 
with the Board for posting on its website.
    (4) Service. Copies of the petition to vacate or modify and replies 
shall be served upon all parties in accordance with the Board's rules 
at part 1104 of this chapter. The appealing party shall also serve a 
copy of its petition to vacate or modify upon the arbitration panel.
    (b) Board's standard of review. The Board's standard of review of 
arbitration decisions under this subpart shall be limited to 
determining only whether:
    (1) The decision is consistent with sound principles of rail 
regulation economics;
    (2) A clear abuse of arbitral authority or discretion occurred;
    (3) The decision directly contravenes statutory authority; or
    (4) The award limitation was violated.
    (c) Relief available on appeal to the Board. Subject to the Board's 
limited standard of review as set forth in paragraph (b) of this 
section, the Board may affirm, modify, or vacate an arbitration award 
in whole or in part, with any modifications subject to the relief 
limits set forth in Sec.  1108.28.
    (d) Confidentiality of Board's decision on appeal--(1) Scope of 
confidentiality. The Board's decision will be public but shall maintain 
the confidentiality of the arbitration decision to the maximum extent 
possible, giving particular attention to avoiding the disclosure of 
information that would have an effect or impact on the marketplace, 
including the specific relief awarded by the arbitration panel, if any, 
or by the Board; or the origin-destination pair(s) involved in the 
arbitration.
    (2) Opportunity to propose redactions to the Board decision. Before 
publishing the Board's decision, the Board shall serve only the parties 
with a confidential version of its decision in order to provide the 
parties with an opportunity to file confidential requests for redaction 
of the Board's decision.
    (i) A request for redaction may be filed under seal within 5 days 
after the date on which the Board serves the parties with the 
confidential version of its decision.
    (ii) The Board will publish its decision(s) on any requests for 
redaction in a way that maintains the confidentiality of any 
information the Board determines should be redacted.
    (e) Reviewability of Board decision. Board decisions affirming, 
vacating, or modifying arbitration awards under this subpart are 
reviewable under the Hobbs Act, 28 U.S.C. 2321 and 2342.
    (f) Appeals subject to the Federal Arbitration Act. Nothing in this 
subpart shall prevent parties to arbitration from seeking judicial 
review of arbitration awards in a court of appropriate jurisdiction 
pursuant to the Federal Arbitration Act, 9 U.S.C. 9-13, in lieu of 
seeking Board review.
    (g) Staying arbitration decision. The timely filing of a petition 
with the Board to modify or vacate the arbitration decision will not 
automatically stay the effect of the arbitration decision. A stay may 
be requested under Sec.  1115.3(f) of this chapter.
    (h) Enforcement. A party seeking to enforce an arbitration decision 
under this subpart must petition a court of appropriate jurisdiction 
under the Federal Arbitration Act, 9 U.S.C. 9-13.


Sec.  1108.32  Assessment of the Small Rate Case Arbitration Program.

    The Board will conduct an assessment of the Small Rate Case 
Arbitration Program to determine if the program is providing an 
effective means of resolving rate disputes for small cases. The Board's 
assessment will occur upon the completion of a reasonable number of 
arbitration proceedings such that the Board can conduct a comprehensive 
assessment, though not later than three years after start of the 
program. In conducting this assessment, the Board will obtain feedback 
from relevant parties. As part of the Board's assessment, it will study 
the cost to arbitrate a rate dispute as compared to the cost of 
adjudicating a formal rate case. Depending on the outcome of such 
review, the Board may determine that the arbitration program will be 
terminated, modified, and/or extended beyond the initial 5-year period.


Sec.  1108.33  Exemption from Final Offer Rate Review.

    Carriers that opt into the arbitration program under Sec.  
1108.23(a) will be exempt from having their rates challenged under 
Final Offer Rate Review if the program becomes operative. The exemption 
from Final Offer Rate Review will become operative upon publication of 
the Board's notice commencing the arbitration program required under 
Sec.  1108.22(b) in the Federal Register. The exemption will terminate 
upon the effective date of the participating carrier no longer 
participating in the arbitration program under this part, including, 
due to withdrawal from the arbitration program, as set forth in Sec.  
1108.23(c) or termination of the program under the sunset-provision of 
Sec.  1108.22(b). Upon termination of the exemption, parties are 
permitted to challenge a carrier's rate using Final Offer Rate Review.

PART 1115--APPELLATE PROCEDURES

0
8. The authority citation for part 1115 continues to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.


0
9. Revise the third sentence of Sec.  1115.8 to read as follows:


Sec.  1115.8  Petitions to review arbitration decisions.

    * * * For arbitrations authorized under part 1108, subparts A and 
B, of this chapter, the Board's standard of

[[Page 736]]

review of arbitration decisions will be narrow, and relief will only be 
granted on grounds that the decision is inconsistent with sound 
principles of rail regulation economics, a clear abuse of arbitral 
authority or discretion occurred, the decision directly contravenes 
statutory authority, or the award limitation was violated.
* * * * *

PART 1244--WAYBILL ANALYSIS OF TRANSPORTATION OF PROPERTY--
RAILROADS

0
10. The authority citation for part 1244 continues to read as follows:

    Authority: 49 U.S.C. 1321, 10707, 11144, 11145.


0
11. Revise Sec.  1244.9(b)(4) to read as follows:


Sec.  1244.9  Procedures for the release of waybill data.

* * * * *
    (b) * * *
    (4) Transportation practitioners, consulting firms, and law firms--
specific proceedings. Transportation practitioners, consulting firms, 
and law firms may use data from the STB Waybill Sample in preparing 
verified statements to be submitted in formal proceedings before the 
STB and/or State Boards (Board), or in preparing documents to be 
submitted in arbitration matters under part 1108, subpart B, of this 
chapter, subject to the following requirements:
    (i) The STB Waybill Sample is the only single source of the data or 
obtaining the data from other sources is burdensome or costly, and the 
data is relevant to issues in a pending formal proceeding before the 
Board or in arbitration matters under part 1108, subpart B, of this 
chapter (when seeking data beyond the automatic waybill data release 
under Sec.  1108.27(g) of this chapter).
    (ii) The requestor submits to the STB a written waybill request 
that complies with paragraph (e) of this section or is part of the 
automatic waybill data release under Sec.  1108.27(g) of this chapter 
for use in arbitrations pursuant to part 1108, subpart B, of this 
chapter.
    (iii) All waybill data must be returned to the STB, and the 
practitioner or firm must not keep any copies.
    (iv) A transportation practitioner, consulting firm, or law firm 
must submit any evidence drawn from the STB Waybill Sample only to the 
Board or to an arbitration panel impaneled under part 1108, subpart B, 
of this chapter, unless the evidence is aggregated to the level of at 
least three shippers and will prevent the identification of an 
individual railroad. Nonaggregated evidence submitted to the Board will 
be made part of the public record only if the Board finds that it does 
not reveal competitively sensitive data. However, evidence found to be 
sensitive may be provided to counsel or other independent 
representatives for other parties subject to the usual and customary 
protective order issued by the Board or appropriate authorized 
official.
    (v) When waybill data is provided for use in a formal Board 
proceeding, a practitioner or firm must sign a confidentiality 
agreement with the STB agreeing to the restrictions specified in 
paragraphs (b)(4)(i) through (iv) of this section before any data will 
be released. This agreement will govern access and use of the released 
data for a period of one year from the date the agreement is signed by 
the user. If the data is required for an additional period of time 
because a proceeding is still pending before the Board or a court, the 
practitioner or firm must sign a new confidentiality agreement covering 
the data needed for each additional year the proceeding is opened.
    (vi) When waybill data is provided for use in arbitrations pursuant 
to part 1108, subpart B, of this chapter, the transportation 
practitioners, consulting firms, or law firms representing parties to 
the arbitration and each arbitrator must sign a confidentiality 
agreement with the STB agreeing to the restrictions specified in 
paragraphs (b)(4)(i) through (iv) of this section before any data will 
be released. The agreement with practitioners and firms will govern 
access and use of the released data for a period of one year from the 
date the agreement is signed by the user. If the data is required for 
an additional period of time because an arbitration or appeal of an 
arbitration is still pending before the Board or a court, the 
practitioner or firm must sign a new confidentiality agreement covering 
the data needed for each additional year the arbitration or appeal is 
pending. The agreement with each arbitrator will allow that arbitrator 
to review any evidence that includes confidential waybill data in a 
particular arbitration matter.
* * * * *

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

BILLING CODE 4915-01-P

[[Page 737]]



                                Appendix
     Overview and Timeline of the Arbitration Process With Mediation
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Note: Items in italics are not defined in the regulations but are rough
 approximations. Indented items are procedural steps that may not be
 needed in every arbitration or that do not affect the due date of the
 following step.


 [GRAPHIC] [TIFF OMITTED] TR04JA23.110
 

[[Page 738]]


   Overview and Timeline of the Arbitration Process Without Mediation
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Note: Items in italics are not defined in the regulations but are rough
 approximations. Indented items are procedural steps that may not be
 needed in every arbitration or that do not affect the due date of the
 following step.


 [GRAPHIC] [TIFF OMITTED] TR04JA23.111
 
[FR Doc. 2022-27924 Filed 1-3-23; 8:45 am]
BILLING CODE 4915-01-C