Notice2021-25916
Petition for Rulemaking To Adopt Rules Governing Private Railcar Use by Railroads
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 29, 2021
Issuing agencies
Surface Transportation Board
Full Text
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<title>Federal Register, Volume 86 Issue 226 (Monday, November 29, 2021)</title>
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[Federal Register Volume 86, Number 226 (Monday, November 29, 2021)]
[Notices]
[Pages 67781-67782]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25916]
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SURFACE TRANSPORTATION BOARD
[Docket No. EP 768]
Petition for Rulemaking To Adopt Rules Governing Private Railcar
Use by Railroads
On July 26, 2021, the North America Freight Car Association, The
National Grain and Feed Association (NGFA), The Chlorine Institute, and
The National Oilseed Processors Association (collectively, Petitioners)
filed a petition for rulemaking proposing that the Board adopt
regulations, pursuant to its car service authority under 49 U.S.C.
11122(a)(2), that would allow private railcar providers \1\ to assess a
``private railcar delay charge'' when a private freight car does not
move for more than 72 consecutive hours at any point between the time
it is ``released for transportation'' and the time it is ``either
constructively placed or actually placed at the private railcar
provider's facility or designated location.'' (Pet. 1, 23-24.) \2\
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\1\ Petitioners define a ``private railcar provider'' as ``a
shipper, receiver, or other party who owns or leases a private
railcar and provides it to a railroad for transportation.'' (Pet.
23.)
\2\ Constructive placement occurs when a rail car is available
for delivery but cannot actually be placed at the receiver's
destination because of a condition attributable to the receiver,
such as lack of room on the tracks in the receiver's facility. See
Pol'y Statement on Demurrage & Accessorial Rules & Charges, EP 757,
slip op. at 8 n.22 (STB served Apr. 30, 2020).
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The Board received replies to the petition from the Association of
American Railroads (AAR), CSX Transportation, Inc. (CSXT), Union
Pacific Railroad Company (UP), the Institute for Scrap Recycling
Industries, Inc. (ISRI), a group of shipper associations including the
American Chemistry Council, The Fertilizer Institute, and the National
Industrial Transportation League (collectively, Joint Shippers), the
National Association of Chemical Distributors (NACD), the National Coal
Transportation Association (NCTA), the Private Railcar Food and
Beverage Association (PRFBA), American Fuel & Petrochemical
Manufacturers (AFPM), the Freight Rail Customer Alliance (FRCA), and
the Canadian Oilseed Processors Association (COPA),\3\ as well as
notices of intent to participate from NGFA and the American Short Line
and Regional Railroad Association. AAR, CSXT, and UP oppose the
petition, while ISRI, Joint Shippers, NACD, NCTA, PRFBA, AFPM, FRCA,
and COPA support it.
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\3\ Replies to the petition were due by August 30, 2021, and
COPA's reply was filed after that date. In the interest of having a
more complete record, however, COPA's reply will be accepted into
the record.
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On September 10, 2021, Petitioners submitted a surreply to the
replies, along with a motion for leave to file. On September 23, 2021,
AAR and UP submitted replies to Petitioners' motion for leave to file.
AAR states that it does not object to the Board accepting Petitioners'
surreply into the record, as long as it also accepts AAR's ``brief
rejoinder,'' (AAR Reply 1, Sept. 23, 2021), and UP states that it takes
no position on Petitioners' motion for leave but asks the Board to
reject certain claims Petitioners made in their surreply, (UP Reply 1,
Sept. 23, 2021).\4\
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\4\ Under 49 CFR 1104.13(c), a reply to a reply is not
permitted. However, in the interest of a more complete record, the
Board will grant Petitioners' motion for leave. See City of
Alexandria--Pet. for Declaratory Ord., FD 35157, slip op. at 2 (STB
served Nov. 6, 2008) (allowing a reply to a reply ``[i]n the
interest of compiling a full record'').
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Petitioners contend that the proposed regulations are necessary to
encourage the efficient use of private freight cars, (Pet. 8-10), and
to compensate private railcar providers for the costs they incur when
carriers use private freight cars inefficiently, (id. at 12-13). In
response, UP and AAR claim that the Board lacks the statutory authority
under section 11122(a)(2) to adopt the proposed
[[Page 67782]]
regulations. (UP Reply 2-3; AAR Reply 3-6.) \5\ AAR, CSXT, and UP
contend, moreover, that the proposed regulations are unnecessary
because carriers have sufficient incentives to move cars efficiently,
as delayed cars hinder operations and reduce revenue. (CSXT Reply 3-4;
UP Reply 7-8, Aug. 30, 2021; AAR Reply 8-9, Aug. 30, 2021.) They also
argue that the proposed regulations will have a negative impact on the
overall efficiency of the rail network by incentivizing carriers to
move private freight cars inefficiently to avoid the charges and by
reducing cooperation between carriers during periods of network stress.
(CSXT Reply 6; UP Reply 9, Aug. 30, 2021; AAR Reply 16, Aug. 30, 2021.)
Other respondents contend that the proposed regulations would provide
appropriate financial incentives for Class I carriers to use private
freight cars more efficiently, (NCTA Reply 1-2; PRFBA Reply 1; FRCA
Reply 1), and offer reciprocity for demurrage charges (ISRI Reply 4;
NACD Reply 1; AFPM Reply 2; COPA Reply 1-2). Furthermore, Joint
Shippers ask the Board to solicit comments on how the proposed
regulations would be implemented, including whether carriers would be
responsible for monitoring private freight car delays and crediting
amounts owed under the proposed regulations against their demurrage
invoices. (Joint Shippers Reply 5.)
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\5\ Additionally, CSXT states that it joins AAR's comments.
(CSXT Reply 2.)
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Petitioners' proposal and the responses to date raise important
issues of interest to the Board. Therefore, to further consider
Petitioners' proposal and the responses, the Board will open a
proceeding. Procedures for further public comment will be established
in a subsequent decision.
It is ordered:
1. Petitioners' motion for leave to file a surreply is granted.
2. Petitioners' petition is granted to the extent that it requests
that the Board open a proceeding.
3. Notice of this decision will be published in the Federal
Register.
4. This decision is effective on its service date.
Decided: November 22, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz.
Eden Besera,
Clearance Clerk.
[FR Doc. 2021-25916 Filed 11-26-21; 8:45 am]
BILLING CODE 4915-01-P
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