[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2777 Reported in Senate (RS)]
Calendar No. 624
113th CONGRESS
2d Session
S. 2777
To establish the Surface Transportation Board as an independent
establishment, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 8, 2014
Mr. Rockefeller (for himself, Mr. Thune, and Ms. Baldwin) introduced
the following bill; which was read twice and referred to the Committee
on Commerce, Science, and Transportation
December 8, 2014
Reported by Mr. Rockefeller, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To establish the Surface Transportation Board as an independent
establishment, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Surface Transportation
Board Reauthorization Act of 2014''.</DELETED>
<DELETED>SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE.</DELETED>
<DELETED> Except as otherwise expressly provided, wherever in this
Act an amendment or repeal is expressed in terms of an amendment to, or
repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of title 49,
United States Code.</DELETED>
<DELETED>SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION BOARD AS AN
INDEPENDENT ESTABLISHMENT.</DELETED>
<DELETED> (a) In General.--Section 701(a) is amended to read as
follows:</DELETED>
<DELETED> ``(a) Establishment.--The Surface Transportation Board is
an independent establishment of the United States
Government.''.</DELETED>
<DELETED> (b) Conforming Amendments.--</DELETED>
<DELETED> (1) Administrative provisions.--Section 703 is
amended--</DELETED>
<DELETED> (A) by striking subsections (a), (c), (f),
and (g);</DELETED>
<DELETED> (B) by redesignating subsections (b), (d),
and (e) as subsections (a), (b), and (c), respectively;
and</DELETED>
<DELETED> (C) by adding at the end the
following:</DELETED>
<DELETED> ``(d) Submissions and Transmittals.--Whenever the Board
submits or transmits any budget estimate, budget request, supplemental
budget estimate, or other budget information, legislative
recommendation, prepared testimony for a congressional hearing, or
comment on legislation to the President or to the Office of Management
and Budget, it shall concurrently transmit a copy thereof to the
Committee on Commerce, Science, and Transportation of the Senate and
the Committee on Transportation and Infrastructure of the House of
Representatives. No officer or agency of the United States shall have
any authority to require the Board to submit its budget estimates or
requests, legislative recommendations, prepared testimony for
congressional hearings, or comments on legislation to any officer or
agency of the United States for approval, comments, or review, prior to
the submission of the recommendations, testimony, or comments to
Congress.''.</DELETED>
<DELETED> (2) Administrative support.--</DELETED>
<DELETED> (A) Repealer.--Section 725 is
repealed.</DELETED>
<DELETED> (B) Conforming amendment.--The table of
contents for chapter 7 is amended by striking the item
relating to section 725.</DELETED>
<DELETED>SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP.</DELETED>
<DELETED> (a) In General.--Section 701(b) is amended--</DELETED>
<DELETED> (1) in paragraph (1)--</DELETED>
<DELETED> (A) by striking ``3 members'' and
inserting ``5 members''; and</DELETED>
<DELETED> (B) by striking ``2 members'' and
inserting ``3 members''; and</DELETED>
<DELETED> (2) by striking paragraph (2) and inserting the
following:</DELETED>
<DELETED> ``(2) At any given time, at least 3 members of the
Board shall be individuals with professional standing and
demonstrated knowledge in the fields of transportation,
transportation regulation, or economic regulation, and at least
2 members shall be individuals with professional or business
experience (including agriculture or other rail customers) in
the private sector.''.</DELETED>
<DELETED> (b) Repeal of Holdover Limitation.--Section 701(b)(3) is
amended by striking ``qualified, but for a period not to exceed one
year'' and inserting ``qualified''.</DELETED>
<DELETED> (c) Repeal of Obsolete Provision.--Section 701(b) is
amended--</DELETED>
<DELETED> (1) by striking paragraph (4);</DELETED>
<DELETED> (2) by redesignating paragraphs (5), (6), and (7)
as paragraphs (4), (5), and (6), respectively; and</DELETED>
<DELETED> (3) by striking ``In the case of an individual who
becomes a member of the Board pursuant to paragraph (4), or an
individual'' in paragraph (4), as redesignated, and inserting
``In the case of an individual''.</DELETED>
<DELETED>SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS.</DELETED>
<DELETED> Section 703(a), as redesignated by section 3 of this Act,
is amended to read as follows:</DELETED>
<DELETED> ``(a) Open Meetings.--</DELETED>
<DELETED> ``(1) In general.--The Board shall be deemed to be
an agency for purposes of section 552b of title 5.</DELETED>
<DELETED> ``(2) Nonpublic collaborative discussions.--
</DELETED>
<DELETED> ``(A) In general.--Notwithstanding section
552b of title 5, a majority of the members may hold a
meeting that is not open to public observation to
discuss official agency business if--</DELETED>
<DELETED> ``(i) no vote or other disposition
of official agency business is taken at the
meeting;</DELETED>
<DELETED> ``(ii) each individual present at
the meeting is a member or an employee of the
Board; and</DELETED>
<DELETED> ``(iii) the General Counsel of the
Board is present at the meeting.</DELETED>
<DELETED> ``(B) Disclosure of nonpublic
collaborative discussions.--Except as provided under
subparagraph (C), not later than 2 business days after
the conclusion of a meeting under subparagraph (A), the
Board shall make available to the public, in a place
easily accessible to the public--</DELETED>
<DELETED> ``(i) a list of the individuals
present at the meeting; and</DELETED>
<DELETED> ``(ii) a summary of the matters
discussed at the meeting, except for any
matters the Board properly determines may be
withheld from the public under section 552b(c)
of title 5.</DELETED>
<DELETED> ``(C) Ongoing proceedings.--If a
discussion under subparagraph (A) relates, directly or
indirectly, to an ongoing proceeding before the Board,
the Board shall make the disclosure under subparagraph
(B) on the date of the final Board decision.</DELETED>
<DELETED> ``(D) Preservation of open meetings
requirements for agency action.--Nothing in this
paragraph shall limit the applicability of section 552b
of title 5 with respect to a meeting of the members
other than that described in this paragraph.</DELETED>
<DELETED> ``(E) Statutory construction.--Nothing in
this paragraph--</DELETED>
<DELETED> ``(i) shall limit the
applicability of section 552b of title 5 with
respect to any information which is proposed to
be withheld from the public under subparagraph
(B)(ii); and</DELETED>
<DELETED> ``(ii) authorizes the Board to
withhold from any individual any record that is
accessible to that individual under section
552a of title 5, United States
Code.''.</DELETED>
<DELETED>SEC. 6. INVESTIGATIVE AUTHORITY.</DELETED>
<DELETED> (a) Authority To Initiate Investigations.--Section
11701(a) is amended by striking ``only on complaint'' and inserting
``on the Board's own initiative or on complaint''.</DELETED>
<DELETED> (b) Rate Proceedings.--Section 10704(b) is amended by
striking the first sentence and inserting ``The Board may begin a
proceeding under subsection (a)(1) on its own initiative or upon
complaint, except that a proceeding to determine the reasonableness of
the level of a rate charged by a carrier may only be initiated upon
complaint.''.</DELETED>
<DELETED> (c) Annual Report; Investigations.--Section 704 is amended
by striking ``on its activities.'' and inserting ``on its activities,
including each instance in which the Board has initiated an
investigation on its own initiative under this chapter or subtitle
IV.''.</DELETED>
<DELETED>SEC. 7. PROCEDURES FOR RATE CASES.</DELETED>
<DELETED> (a) Simplified Procedure.--Section 10701(d)(3) is amended
to read as follows:</DELETED>
<DELETED> ``(3) The Board shall maintain a simplified and
expedited method for determining the reasonableness of
challenged rates in those cases in which a full stand-alone
cost presentation is too costly, given the value of the
case.''.</DELETED>
<DELETED> (b) Expedited Handling.--Section 10704(d) is amended by
striking the first sentence and inserting ``The Board shall maintain
procedures to ensure expeditious handling of challenges to the
reasonableness of railroad rates.''.</DELETED>
<DELETED>SEC. 8. RATE REVIEW TIMELINES.</DELETED>
<DELETED> Section 10704(d), as amended by section 7 of this Act, is
further amended--</DELETED>
<DELETED> (1) by striking ``(d) The'' and inserting ``(d)(1)
The''; and</DELETED>
<DELETED> (2) by adding at the end the following:</DELETED>
<DELETED> ``(2)(A) Except as provided under subparagraph
(B), in a stand-alone cost rate challenge, the Board shall
comply with the following timeline:</DELETED>
<DELETED> ``(i) For discovery, completion
not later than 150 days after the date that the
challenge is initiated.</DELETED>
<DELETED> ``(ii) For development of the
evidentiary record, completion not later than
155 days after the date that discovery is
complete under clause (i).</DELETED>
<DELETED> ``(iii) For submission of a
closing brief, submission not later than 60
days after the date that development of the
evidentiary record is complete under clause
(ii).</DELETED>
<DELETED> ``(iv) For a final Board decision,
issuance not later than 180 days after the date
that the last closing brief is submitted under
clause (iii).</DELETED>
<DELETED> ``(B) The Board may extend a timeline
under subparagraph (A) after a request from any party
or in the interest of due process.''.</DELETED>
<DELETED>SEC. 9. EFFECT OF RATE BUNDLING.</DELETED>
<DELETED> Not later than 180 days after the date of enactment of
this Act, the Surface Transportation Board shall initiate an ex parte
proceeding on whether contract proposals for multiple origin-to-
destination movements have adversely impacted the intent of Congress
that the Surface Transportation Board's rate challenge procedures
remain available to shippers that are subject to railroad market
dominance, and how the Board can prevent such practices in the
future.</DELETED>
<DELETED>SEC. 10. REPORT ON RATE CASE METHODOLOGY.</DELETED>
<DELETED> Not later than 1 year after the date of enactment of this
Act, the Surface Transportation Board shall report to the Committee on
Commerce, Science, and Transportation of the Senate and the Committee
on Transportation and Infrastructure of the House of Representatives
on--</DELETED>
<DELETED> (1) whether current methodologies are sufficient
to address the complexity of large rate cases; and</DELETED>
<DELETED> (2) alternative methodologies that could
streamline and expedite large rate cases.</DELETED>
<DELETED>SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRACTICES, AND
COMMON CARRIER SERVICE EXPECTATION DISPUTES.</DELETED>
<DELETED> (a) In General.--Chapter 117 is amended by adding at the
end the following:</DELETED>
<DELETED>``Sec. 11709. Arbitration of certain rail rates, practices,
and common carrier service disputes</DELETED>
<DELETED> ``(a) In General.--Not later than 1 year after the date of
enactment of the Surface Transportation Board Reauthorization Act of
2014, the Board shall promulgate regulations to establish a binding
arbitration process to resolve rail rate, practice, and common carrier
service expectation complaints subject to the jurisdiction of the
Board.</DELETED>
<DELETED> ``(b) Covered Disputes.--The binding arbitration process--
</DELETED>
<DELETED> ``(1) shall apply to disputes involving rates,
practices, and common carrier service expectations subject to
the jurisdiction of the Board; and</DELETED>
<DELETED> ``(2) shall not apply to--</DELETED>
<DELETED> ``(A) disputes to obtain the grant,
denial, stay, or revocation of any license,
authorization, or exemption, or to prescribe for the
future any conduct, rules, or results of general,
industry-wide applicability, or to enforce a labor
protective condition; and</DELETED>
<DELETED> ``(B) disputes solely between 2 or more
rail carriers.</DELETED>
<DELETED> ``(c) Arbitration Procedures.--</DELETED>
<DELETED> ``(1) In general.--The Board--</DELETED>
<DELETED> ``(A) may make the binding arbitration
process available only to the relevant parties--
</DELETED>
<DELETED> ``(i) after the filing of a formal
complaint; or</DELETED>
<DELETED> ``(ii) upon petition by a party at
the conclusion of any informal dispute
resolution process provided by the Board for a
complaint subject to this section;</DELETED>
<DELETED> ``(B) with respect to rate disputes, may
make the binding arbitration process available only to
the relevant parties if the rail carrier has market
dominance, as determined under section 10707 of this
title; and</DELETED>
<DELETED> ``(C) shall determine whether to pursue
the binding arbitration process not later than 30 days
after the date that a petition or formal complaint is
filed.</DELETED>
<DELETED> ``(2) Limitation.--Initiation of the binding
arbitration process shall preclude the Board from separately
reviewing a complaint or dispute related to the same rail rate,
practice, or common carrier service expectation in a covered
dispute involving the same parties.</DELETED>
<DELETED> ``(3) Rates.--In resolving a covered dispute
involving the reasonableness of a rail carrier's rates, the
arbitrator or panel of arbitrators, as applicable, shall
consider the Board's methodologies for setting maximum lawful
rates, giving due consideration to the need for differential
pricing to permit a rail carrier to collect adequate revenues
within the meaning of section 10704(a)(2).</DELETED>
<DELETED> ``(4) Service expectations.--In resolving a
dispute involving common carrier service expectations, the
arbitrator or panel of arbitrators, as applicable, shall
consider the rates and service terms, and any changes thereto,
as published or otherwise made available under subsection (b),
(c), or (d) of section 11101.</DELETED>
<DELETED> ``(d) Arbitration Decisions.--Any decision reached in an
arbitration process under this section--</DELETED>
<DELETED> ``(1) shall--</DELETED>
<DELETED> ``(A) be consistent with subtitle
IV;</DELETED>
<DELETED> ``(B) be in writing;</DELETED>
<DELETED> ``(C) contain findings of fact and
conclusions; and</DELETED>
<DELETED> ``(D) be binding upon the parties;
and</DELETED>
<DELETED> ``(2) shall not have any precedential effect in
any other or subsequent arbitration dispute.</DELETED>
<DELETED> ``(e) Timelines.--</DELETED>
<DELETED> ``(1) Selection.--An arbitrator or panel of
arbitrators shall be selected not later than 14 days after the
date of the Board's decision to initiate arbitration.</DELETED>
<DELETED> ``(2) Evidentiary process.--The evidentiary
process of the binding arbitration process shall be completed
not later than 90 days after the date that the arbitration
process is initiated, unless a party requests an extension and
the arbitrator or panel of arbitrators, as applicable, grants
it.</DELETED>
<DELETED> ``(3) Decision.--The arbitrator or panel of
arbitrators, as applicable, shall issue a decision not later
than 30 days after the date that the evidentiary record is
closed.</DELETED>
<DELETED> ``(4) Extensions.--The Board may extend any of the
timelines in this subsection upon the agreement of all parties
in the dispute.</DELETED>
<DELETED> ``(f) Arbitrators.--</DELETED>
<DELETED> ``(1) In general.--Arbitration under this section
shall be conducted by an arbitrator, or a panel of arbitrators,
selected from a roster, maintained by the Board, of persons
with rail transportation, economic regulation, professional or
business experience, including agriculture, in the private
sector.</DELETED>
<DELETED> ``(2) Selection.--</DELETED>
<DELETED> ``(A) In general.--If the parties cannot
mutually agree on an arbitrator, or the lead arbitrator
of a panel of arbitrators, the parties shall select the
arbitrator or lead arbitrator from the roster by
alternately striking names from the roster until only 1
name remains.</DELETED>
<DELETED> ``(B) Panel of arbitrators.--For purposes
of this section, a panel of arbitrators shall be
selected as follows:</DELETED>
<DELETED> ``(i) Notwithstanding subparagraph
(A), each party to a dispute shall select 1
arbitrator from the roster.</DELETED>
<DELETED> ``(ii) The parties to a dispute
may mutually select 1 arbitrator from the
roster to serve as the lead arbitrator of the
panel of arbitrators.</DELETED>
<DELETED> ``(3) Cost.--The parties shall share the costs of
the arbitration equally.</DELETED>
<DELETED> ``(g) Relief.--An arbitral decision under this section may
award the payment of damages or rate prescriptive relief, but the value
of the award shall be limited as follows:</DELETED>
<DELETED> ``(1) For common carrier service and practice
disputes, the damage award may not exceed $2,000,000.</DELETED>
<DELETED> ``(2) For rate disputes, the damage award,
including any rate prescription, may not exceed $25,000,000,
and any rate prescription shall be limited to not longer than 5
years from the date of the arbitral decision.</DELETED>
<DELETED> ``(h) Board Review.--If a party appeals a decision under
this section to the Board, the Board may review the decision under this
section to determine if--</DELETED>
<DELETED> ``(1) the decision is consistent with subtitle IV
as applied by the Board; or</DELETED>
<DELETED> ``(2) the award limitation under subsection
(g).''.</DELETED>
<DELETED> (b) Conforming Amendment.--The table of contents for
chapter 117 is amended by adding at the end the following:</DELETED>
<DELETED>``11709. Arbitration of certain rail rate, practice, and
common carrier service disputes.''.
<DELETED>SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE TRANSPORTATION
BOARD.</DELETED>
<DELETED> (a) In General.--Section 704, as amended by section 6 of
this Act, is further amended--</DELETED>
<DELETED> (1) by striking the section heading and inserting
the following:</DELETED>
<DELETED>``Sec. 704. Reports'';</DELETED>
<DELETED> (2) by inserting ``(a) Annual Report.--'' before
``The Board'' and indenting appropriately; and</DELETED>
<DELETED> (3) by adding at the end the following:</DELETED>
<DELETED> ``(b) Complaints.--</DELETED>
<DELETED> ``(1) In general.--The Board shall establish and
maintain a database of complaints received by the
Board.</DELETED>
<DELETED> ``(2) Quarterly reports.--The Board shall post a
quarterly report of formal and informal service complaints
received by the Board during the previous quarter that
includes--</DELETED>
<DELETED> ``(A) a list of the type of each
complaint;</DELETED>
<DELETED> ``(B) the geographic region of each
complaint; and</DELETED>
<DELETED> ``(C) the resolution of each complaint, if
appropriate.</DELETED>
<DELETED> ``(3) Written consent.--The quarterly report may
identify a complainant that submitted an informal complaint
only upon the written consent of the complainant.</DELETED>
<DELETED> ``(4) Website posting.--Each quarterly report
shall be posted on the Board's public website.''.</DELETED>
<DELETED> (b) Conforming Amendment.--The table of contents for
chapter 7 is amended by striking the item relating to section 704 and
inserting the following:</DELETED>
<DELETED>``704. Reports.''.
<DELETED>SEC. 13. QUARTERLY REPORTS.</DELETED>
<DELETED> Not later than 60 days after the date of enactment of this
Act, the Surface Transportation Board shall begin providing quarterly
reports to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Transportation and Infrastructure of
the House of Representatives on the Surface Transportation Board's
progress toward addressing the issues raised in each unfinished
regulatory proceeding, regardless of whether the proceeding is subject
to a statutory or regulatory deadline.</DELETED>
<DELETED>SEC. 14. SENSE OF CONGRESS.</DELETED>
<DELETED> It is the sense of Congress that--</DELETED>
<DELETED> (1) as part of Docket No. EP 722, the Surface
Transportation Board should consider the costs and benefits of
the annual determinations of revenue adequacy for Class I
railroads;</DELETED>
<DELETED> (2) the Surface Transportation Board should review
the methodology employed to define the business cycle in its
annual determination of revenue adequacy and consider
undertaking, if necessary, a rulemaking to define the business
cycle;</DELETED>
<DELETED> (3) as part of Docket No. EP 711, the Surface
Transportation Board should consider if a rulemaking proceeding
on mandatory competitive switching is needed to ensure a viable
competitive national rail system; and</DELETED>
<DELETED> (4) if the Surface Transportation Board determines
a rulemaking proceeding on mandatory competitive switching is
needed, the Surface Transportation Board should ensure that
such rulemaking is completed in as timely a manner as
possible.</DELETED>
<DELETED>SEC. 15. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> Section 705 is amended by striking paragraphs (1) through
(3) and inserting the following:</DELETED>
<DELETED> ``(1) $33,000,000 for fiscal year 2015;</DELETED>
<DELETED> ``(2) $35,000,000 for fiscal year 2016;</DELETED>
<DELETED> ``(3) $35,500,000 for fiscal year 2017;</DELETED>
<DELETED> ``(4) $35,500,000 for fiscal year 2018;
and</DELETED>
<DELETED> ``(5) $36,000,000 for fiscal year
2019.''.</DELETED>
<DELETED>SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS.</DELETED>
<DELETED> (a) Expired Rail Service Contract Limitation.--Section
10709 is amended by striking subsection (h).</DELETED>
<DELETED> (b) Agent in the District of Columbia.--</DELETED>
<DELETED> (1) Designation of agent and service of notice.--
Section 72 is amended--</DELETED>
<DELETED> (A) in subsection (a), by striking ``in
the District of Columbia,''; and</DELETED>
<DELETED> (B) in subsection (c), by striking ``in
the District of Columbia''.</DELETED>
<DELETED> (2) Service of process in court proceedings.--
Section 724(a) is amended by striking ``in the District of
Columbia'' each place it appears.</DELETED>
<DELETED>SEC. 17. CONSTRUCTION.</DELETED>
<DELETED> Nothing in this Act shall be construed to affect any suit
commenced by or against the Surface Transportation Board, or any
proceeding or challenge pending before the Surface Transportation
Board, prior to the date of enactment of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Surface Transportation Board
Reauthorization Act of 2014''.
SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE.
Except as otherwise expressly provided, wherever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of title 49, United States
Code.
SEC. 3. ESTABLISHMENT OF SURFACE TRANSPORTATION BOARD AS AN INDEPENDENT
ESTABLISHMENT.
(a) In General.--Section 701(a) is amended to read as follows:
``(a) Establishment.--The Surface Transportation Board is an
independent establishment of the United States Government.''.
(b) Conforming Amendments.--
(1) Administrative provisions.--Section 703 is amended--
(A) by striking subsections (a), (c), (f), and (g);
(B) by redesignating subsections (b), (d), and (e)
as subsections (a), (b), and (c), respectively; and
(C) by adding at the end the following:
``(d) Submissions and Transmittals.--Whenever the Board submits or
transmits any budget estimate, budget request, supplemental budget
estimate, or other budget information, legislative recommendation,
prepared testimony for a congressional hearing, or comment on
legislation to the President or to the Office of Management and Budget,
it shall concurrently transmit a copy thereof to the Committee on
Commerce, Science, and Transportation of the Senate and the Committee
on Transportation and Infrastructure of the House of Representatives.
No officer or agency of the United States shall have any authority to
require the Board to submit its budget estimates or requests,
legislative recommendations, prepared testimony for congressional
hearings, or comments on legislation to any officer or agency of the
United States for approval, comments, or review, prior to the
submission of the recommendations, testimony, or comments to
Congress.''.
(2) Administrative support.--
(A) Repealer.--Section 725 is repealed.
(B) Conforming amendment.--The table of contents
for chapter 7 is amended by striking the item relating
to section 725.
(c) Department of Transportation Inspector General Authority.--
(1) In general.--Subchapter II of chapter 7 is amended--
(A) by redesignating section 727 as section 728;
and
(B) by inserting after section 726 the following:
``Sec. 727. Authority of the Inspector General
``(a) In General.--The Inspector General of the Department of
Transportation, in accordance with the mission of the Inspector General
to prevent and detect fraud and abuse, shall have authority to review
only the financial management, property management, and business
operations of the Surface Transportation Board, including internal
accounting and administrative control systems, to determine compliance
with applicable Federal laws, rules, and regulations.
``(b) Duties.--In carrying out this section, the Inspector General
shall--
``(1) keep the Chairman of the Board and the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Transportation and Infrastructure of the House of
Representatives fully and currently informed about problems
relating to administration of the internal accounting and
administrative control systems of the Board;
``(2) issue findings and recommendations for actions to
address such problems; and
``(3) report periodically to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Transportation and Infrastructure of the House of
Representatives on any progress made in implementing actions to
address such problems.
``(c) Access to Information.--In carrying out this section, the
Inspector General may exercise authorities granted to the Inspector
General under subsections (a) and (b) of section 6 of the Inspector
General Act of 1978 (5 U.S.C. App.).
``(d) Authorization of Appropriations.--
``(1) Funding.--There are authorized to be appropriated to
the Secretary of Transportation for use by the Inspector
General of the Department of Transportation such sums as may be
necessary to cover expenses associated with activities pursuant
to the authority exercised under this section.
``(2) Reimbursable agreement.--In the absence of an
appropriation under this subsection for an expense referred to
in paragraph (1), the Inspector General and the Board shall
have a reimbursable agreement to cover such expense.''.
(2) Conforming amendment.--The table of contents for
subchapter II of chapter 7 is amended--
(A) by redesignating the item relating to section
727 as relating to section 728; and
(B) by inserting after the item relating to section
726 the following:
``727. Authority of the Inspector General.''.
SEC. 4. SURFACE TRANSPORTATION BOARD MEMBERSHIP.
(a) In General.--Section 701(b) is amended--
(1) in paragraph (1)--
(A) by striking ``3 members'' and inserting ``5
members''; and
(B) by striking ``2 members'' and inserting ``3
members''; and
(2) by striking paragraph (2) and inserting the following:
``(2) At any given time, at least 3 members of the Board
shall be individuals with professional standing and
demonstrated knowledge in the fields of transportation,
transportation regulation, or economic regulation, and at least
2 members shall be individuals with professional or business
experience (including agriculture or other rail customers) in
the private sector.''.
(b) Repeal of Holdover Limitation.--Section 701(b)(3) is amended by
striking ``qualified, but for a period not to exceed one year'' and
inserting ``qualified''.
(c) Repeal of Obsolete Provision.--Section 701(b) is amended--
(1) by striking paragraph (4);
(2) by redesignating paragraphs (5), (6), and (7) as
paragraphs (4), (5), and (6), respectively; and
(3) in paragraph (4), as redesignated, by striking ``In the
case of an individual who becomes a member of the Board
pursuant to paragraph (4), or an individual'' and inserting
``In the case of an individual''.
SEC. 5. NONPUBLIC COLLABORATIVE DISCUSSIONS.
Section 703(a), as redesignated by section 3 of this Act, is
amended to read as follows:
``(a) Open Meetings.--
``(1) In general.--The Board shall be deemed to be an
agency for purposes of section 552b of title 5.
``(2) Nonpublic collaborative discussions.--
``(A) In general.--Notwithstanding section 552b of
title 5, a majority of the members may hold a meeting
that is not open to public observation to discuss
official agency business if--
``(i) no vote or other disposition of
official agency business is taken at the
meeting;
``(ii) each individual present at the
meeting is a member or an employee of the
Board; and
``(iii) the General Counsel of the Board is
present at the meeting.
``(B) Disclosure of nonpublic collaborative
discussions.--Except as provided under subparagraph
(C), not later than 2 business days after the
conclusion of a meeting under subparagraph (A), the
Board shall make available to the public, in a place
easily accessible to the public--
``(i) a list of the individuals present at
the meeting; and
``(ii) a summary of the matters discussed
at the meeting, except for any matters the
Board properly determines may be withheld from
the public under section 552b(c) of title 5.
``(C) Ongoing proceedings.--If a discussion under
subparagraph (A) relates, directly or indirectly, to an
ongoing proceeding before the Board, the Board shall
make the disclosure under subparagraph (B) on the date
of the final Board decision.
``(D) Preservation of open meetings requirements
for agency action.--Nothing in this paragraph shall
limit the applicability of section 552b of title 5 with
respect to a meeting of the members other than that
described in this paragraph.
``(E) Statutory construction.--Nothing in this
paragraph--
``(i) shall limit the applicability of
section 552b of title 5 with respect to any
information which is proposed to be withheld
from the public under subparagraph (B)(ii); and
``(ii) authorizes the Board to withhold
from any individual any record that is
accessible to that individual under section
552a of title 5, United States Code.''.
SEC. 6. INVESTIGATIVE AUTHORITY.
(a) Authority To Initiate Investigations.--Section 11701(a) is
amended by striking ``only on complaint'' and inserting ``on the
Board's own initiative or on complaint''.
(b) Rate Proceedings.--Section 10704(b) is amended by striking the
first sentence and inserting ``The Board may begin a proceeding under
subsection (a)(1) on its own initiative or upon complaint, except that
a proceeding to determine the reasonableness of the level of a rate
charged by a carrier may only be initiated upon complaint.''.
(c) Annual Report; Investigations.--Section 704 is amended by
striking ``on its activities.'' and inserting ``on its activities,
including each instance in which the Board has initiated an
investigation on its own initiative under this chapter or subtitle
IV.''.
SEC. 7. PROCEDURES FOR RATE CASES.
(a) Simplified Procedure.--Section 10701(d)(3) is amended to read
as follows:
``(3) The Board shall maintain a simplified and expedited
method for determining the reasonableness of challenged rates
in those cases in which a full stand-alone cost presentation is
too costly, given the value of the case.''.
(b) Expedited Handling.--Section 10704(d) is amended by striking
the first sentence and inserting ``The Board shall maintain procedures
to ensure expeditious handling of challenges to the reasonableness of
railroad rates.''.
SEC. 8. RATE REVIEW TIMELINES.
Section 10704(d), as amended by section 7 of this Act, is further
amended--
(1) by striking ``(d) The'' and inserting ``(d)(1) The'';
and
(2) by adding at the end the following:
``(2)(A) Except as provided under subparagraph (B), in a
stand-alone cost rate challenge, the Board shall comply with
the following timeline:
``(i) For discovery, completion not later
than 150 days after the date that the challenge
is initiated.
``(ii) For development of the evidentiary
record, completion not later than 155 days
after the date that discovery is complete under
clause (i).
``(iii) For submission of a closing brief,
submission not later than 60 days after the
date that development of the evidentiary record
is complete under clause (ii).
``(iv) For a final Board decision, issuance
not later than 180 days after the date that the
evidentiary record is complete under clause
(ii).
``(B) The Board may extend a timeline under
subparagraph (A) after a request from any party or in
the interest of due process.''.
SEC. 9. EFFECT OF RATE BUNDLING.
Not later than 180 days after the date of enactment of this Act,
the Surface Transportation Board shall initiate an ex parte proceeding
on whether contract proposals for multiple origin-to-destination
movements have adversely impacted the intent of Congress that the
Surface Transportation Board's rate challenge procedures remain
available to shippers that are subject to railroad market dominance,
and how the Board can prevent such practices in the future.
SEC. 10. REPORT ON RATE CASE METHODOLOGY.
Not later than 1 year after the date of enactment of this Act, the
Surface Transportation Board shall report to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Transportation and Infrastructure of the House of Representatives on--
(1) whether current large rate case methodologies are
sufficient, not unduly complex, and cost effective; and
(2) alternative methodologies that could streamline and
expedite large rate cases.
SEC. 11. ARBITRATION OF CERTAIN RAIL RATES, PRACTICES, AND COMMON
CARRIER SERVICE EXPECTATION DISPUTES.
(a) In General.--Chapter 117 is amended by adding at the end the
following:
``Sec. 11708. Voluntary arbitration of certain rail rates, practices,
and common carrier service disputes
``(a) In General.--Not later than 1 year after the date of
enactment of the Surface Transportation Board Reauthorization Act of
2014, the Board shall promulgate regulations to establish a voluntary,
but binding, arbitration process to resolve rail rate, practice, and
common carrier service expectation complaints subject to the
jurisdiction of the Board.
``(b) Covered Disputes.--The binding arbitration process--
``(1) shall apply to disputes involving rates, demurrage,
accessorial charges, misrouting or mishandling of rail cars,
and disputes involving a carrier's published rules and
practices as applied to particular rail transportation;
``(2) shall not apply to--
``(A) disputes to obtain the grant, denial, stay,
or revocation of any license, authorization, or
exemption, or to prescribe for the future any conduct,
rules, or results of general, industry-wide
applicability, or to enforce a labor protective
condition; and
``(B) disputes solely between 2 or more rail
carriers; and
``(3) shall not prevent parties from independently seeking
or utilizing private arbitration services to resolve any
disputes they may have.
``(c) Arbitration Procedures.--
``(1) In general.--The Board--
``(A) may make the voluntary, but binding,
arbitration process available only to the relevant
parties--
``(i) after the filing of a formal
complaint;
``(ii) upon petition by all parties at the
conclusion of any informal dispute resolution
process provided by the Board for a complaint
subject to this section; or
``(iii) through current or future
procedures adopted by the Board to facilitate
voluntary, but binding, arbitration;
``(B) with respect to rate disputes, may make the
binding arbitration process available only to the
relevant parties if the rail carrier has market
dominance, as determined under section 10707 of this
title; and
``(C) shall determine whether to pursue the binding
arbitration process not later than 30 days after the
date that a petition or formal complaint is filed.
``(2) Limitation.--Initiation of the binding arbitration
process shall preclude the Board from separately reviewing a
complaint or dispute related to the same rail rate, practice,
or common carrier service expectation in a covered dispute
involving the same parties.
``(3) Rates.--In resolving a covered dispute involving the
reasonableness of a rail carrier's rates, the arbitrator or
panel of arbitrators, as applicable, shall consider the Board's
methodologies for setting maximum lawful rates, giving due
consideration to the need for differential pricing to permit a
rail carrier to collect adequate revenues within the meaning of
section 10704(a)(2).
``(4) Service expectations.--In resolving a dispute
involving common carrier service expectations, the arbitrator
or panel of arbitrators, as applicable, shall consider the
rates and service terms, and any changes thereto, as published
or otherwise made available under subsection (b), (c), or (d)
of section 11101.
``(d) Arbitration Decisions.--Any decision reached in an
arbitration process under this section--
``(1) shall--
``(A) be in writing;
``(B) contain findings of fact and conclusions; and
``(C) be binding upon the parties; and
``(2) shall not have any precedential effect in any other
or subsequent arbitration dispute.
``(e) Timelines.--
``(1) Selection.--An arbitrator or panel of arbitrators
shall be selected not later than 14 days after the date of the
Board's decision to initiate arbitration.
``(2) Evidentiary process.--The evidentiary process of the
binding arbitration process shall be completed not later than
90 days after the date that the arbitration process is
initiated, unless a party requests an extension and the
arbitrator or panel of arbitrators, as applicable, grants it.
``(3) Decision.--The arbitrator or panel of arbitrators, as
applicable, shall issue a decision not later than 30 days after
the date that the evidentiary record is closed.
``(4) Extensions.--The Board may extend any of the
timelines in this subsection upon the agreement of all parties
in the dispute.
``(f) Arbitrators.--
``(1) In general.--Unless otherwise agreed by all of the
parties, an arbitration under this section shall be conducted
by a panel of arbitrators, selected from a roster, maintained
by the Board, of persons with rail transportation, economic
regulation, professional or business experience, including
agriculture, in the private sector.
``(2) Selection.--
``(A) In general.--If the parties cannot mutually
agree on an arbitrator, or the lead arbitrator of a
panel of arbitrators, the parties shall select the
arbitrator or lead arbitrator from the roster by
alternately striking names from the roster until only 1
name remains.
``(B) Panel of arbitrators.--For purposes of this
section, a panel of arbitrators shall be selected as
follows:
``(i) The parties to a dispute may mutually
select 1 arbitrator from the roster to serve as
the lead arbitrator of the panel of
arbitrators.
``(ii) If the parties cannot mutually agree
on a lead arbitrator, the parties shall select
a lead arbitrator using the process described
in subparagraph (A).
``(iii) In addition to the lead arbitrator
selected under this subparagraph, each party to
a dispute shall select 1 additional arbitrator
from the roster.
``(3) Cost.--The parties shall share the costs of the
arbitration equally.
``(g) Relief.--An arbitral decision under this section may award
the payment of damages or rate prescriptive relief, but the value of
the award shall be limited as follows:
``(1) For common carrier service and practice disputes, the
damage award may not exceed $2,000,000.
``(2) For rate disputes, the damage award, including any
rate prescription, may not exceed $25,000,000, and any rate
prescription shall be limited to not longer than 5 years from
the date of the arbitral decision.
``(h) Board Review.--If a party appeals a decision under this
section to the Board, the Board may review the decision under this
section to determine if--
``(1) a clear abuse of arbitral authority or discretion
occurred;
``(2) the decision directly contravenes statutory
authority; or
``(3) the award limitation under subsection (g) was
violated.''.
(b) Conforming Amendment.--The table of contents for chapter 117 is
amended by adding at the end the following:
``11708. Voluntary arbitration of certain rail rate, practice, and
common carrier service disputes.''.
SEC. 12. COMPILATION OF COMPLAINTS AT SURFACE TRANSPORTATION BOARD.
(a) In General.--Section 704, as amended by section 6 of this Act,
is further amended--
(1) by striking the section heading and inserting the
following:
``Sec. 704. Reports'';
(2) by inserting ``(a) Annual Report.--'' before ``The
Board'' and indenting appropriately; and
(3) by adding at the end the following:
``(b) Complaints.--
``(1) In general.--The Board shall establish and maintain a
database of complaints received by the Board.
``(2) Quarterly reports.--The Board shall post a quarterly
report of formal and informal service complaints received by
the Board during the previous quarter that includes--
``(A) a list of the type of each complaint;
``(B) the geographic region of each complaint; and
``(C) the resolution of each complaint, if
appropriate.
``(3) Written consent.--The quarterly report may identify a
complainant that submitted an informal complaint only upon the
written consent of the complainant.
``(4) Website posting.--Each quarterly report shall be
posted on the Board's public website.''.
(b) Conforming Amendment.--The table of contents for chapter 7 is
amended by striking the item relating to section 704 and inserting the
following:
``704. Reports.''.
SEC. 13. QUARTERLY REPORTS.
Not later than 60 days after the date of enactment of this Act, the
Surface Transportation Board shall begin providing quarterly reports to
the Committee on Commerce, Science, and Transportation of the Senate
and the Committee on Transportation and Infrastructure of the House of
Representatives on the Surface Transportation Board's progress toward
addressing the issues raised in each unfinished regulatory proceeding,
regardless of whether the proceeding is subject to a statutory or
regulatory deadline.
SEC. 14. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) as part of Docket No. EP 722, the Surface
Transportation Board should consider the costs and benefits of
the annual determinations of revenue adequacy for Class I
railroads;
(2) the Surface Transportation Board should review the
methodology employed to define the business cycle in its annual
determination of revenue adequacy and consider undertaking, if
necessary, a rulemaking to define the business cycle;
(3) as part of Docket No. EP 711, the Surface
Transportation Board should consider if a rulemaking proceeding
on competitive switching is needed to promote a viable
competitive national rail system; and
(4) if the Surface Transportation Board determines a
rulemaking proceeding on competitive switching is needed, the
Surface Transportation Board should ensure that such rulemaking
is completed in as timely a manner as possible.
SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
Section 705 is amended by striking paragraphs (1) through (3) and
inserting the following:
``(1) $33,000,000 for fiscal year 2015;
``(2) $35,000,000 for fiscal year 2016;
``(3) $35,500,000 for fiscal year 2017;
``(4) $35,500,000 for fiscal year 2018; and
``(5) $36,000,000 for fiscal year 2019.''.
SEC. 16. REPEAL OF EXPIRED AND OBSOLETE PROVISIONS.
(a) Expired Rail Service Contract Limitation.--Section 10709 is
amended by striking subsection (h).
(b) Agent in the District of Columbia.--
(1) Designation of agent and service of notice.--Section
723 is amended--
(A) in subsection (a), by striking ``in the
District of Columbia,''; and
(B) in subsection (c), by striking ``in the
District of Columbia''.
(2) Service of process in court proceedings.--Section
724(a) is amended by striking ``in the District of Columbia''
each place it appears.
SEC. 17. CONSTRUCTION.
Nothing in this Act shall be construed to affect any suit commenced
by or against the Surface Transportation Board, or any proceeding or
challenge pending before the Surface Transportation Board, prior to the
date of enactment of this Act.
Calendar No. 624
113th CONGRESS
2d Session
S. 2777
_______________________________________________________________________
A BILL
To establish the Surface Transportation Board as an independent
establishment, and for other purposes.
_______________________________________________________________________
December 8, 2014
Reported with an amendment