The National Grain and Feed Association (NGFA) recently reiterated to the federal Surface Transportation Board (STB) the importance of providing transparency and accountability as it implements its important new authority to investigate freight rail issues.
NGFA also strongly opposed recommendations from rail carriers that it said potentially would make the investigative tool unusable.
For freight rail users, including shippers and receivers of grain, feed and processed commodities, the new authority to investigate rail issues having regional or national significance is perhaps the most important part of the STB Reauthorization Act enacted by Congress in 2015. Previously, the STB was precluded from proactively responding to rail issues as promptly and forcefully as it perhaps otherwise could have – including the rail service crisis that gripped the nation during the fall, winter and spring of 2013-14.
In reply comments filed with the STB this month, NGFA challenged the views submitted by rail carrier parties through the Association of American Railways (AAR).
The AAR comments “generally appear to be an attempt to convince the Board to take as narrow a view of its new authority as possible and ultimately to undermine, complicate, make more cumbersome and costly, and potentially render unworkable the ability of the STB and affected rail customer parties to make use of the investigative authority mandated by Congress,” NGFA noted.
NGFA previously submitted comments that generally concurred with the STB’s proposed three-stage process for implementing its new investigative authority. In so doing, NGFA urged the agency to make general information publicly available concerning the types of fact findings and investigations being pursued, with the names of the parties and confidential business information redacted, as well as the outcomes of those initiatives.
In its reply comments, NGFA reiterated its support for the STB’s proposal that would empower its staff to conduct a preliminary fact-finding to determine if sufficient evidence exists to launch an investigation, without the additional railroad-proposed hurdle of requiring preapproval from the STB’s director of the Office of Proceedings or the Board itself. NGFA also noted its strong opposition to the AAR’s proposal that the preliminary fact-finding stage be included within the statutory one-year time limit for a STB-initiated investigation to be completed. Instead, NGFA maintained that the one-year period should begin only if and when the Board decides to pursue an investigation.
The NGFA also strongly opposed the AAR’s proposal that the STB arbitrarily develop a specific definition for when a freight rail practice or issue rises to the level of having “national or regional significance”—the threshold established under the STB Reauthorization Act before an investigation can be pursued.
“We believe that a narrow or prescriptive definition is inappropriate, particularly since Congress itself declined to provide a definition, and fails to acknowledge other factors that could warrant consideration,” NGFA noted.
Alternatively, the NGFA reiterated its previous recommendation that the STB provide illustrative examples of the types of rail practices or issues that it would consider as potentially meeting the statutory threshold “without binding itself to a rigid, self-generated definition that may or may not reflect the intent of Congress and may not be appropriate over time.”
The NGFA urged the STB to finalize its investigative authority rules “as soon as possible so this important protection ... may be made available to the agency and to freight rail users.”