[Federal Register Volume 77, Number 53 (Monday, March 19, 2012)]
[Rules and Regulations]
[Pages 15969-15973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6551]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1244
[Docket No. EP 646 (Sub-No 3)]
Waybill Data Released in Three-Benchmark Rail Rate Proceedings
AGENCY: Surface Transportation Board, DOT.
[[Page 15970]]
ACTION: Final rule.
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SUMMARY: When a shipper files a formal complaint that a railroad's rate
is too high, the Surface Transportation Board (Board) must determine
whether the challenged rate is reasonable. To present its case using
the Board's procedures for small cases, the complaining shipper needs
to obtain from the Board confidential information that the Board
collects regarding the rates that the defendant railroad charges other
shippers for similar shipments. Pursuant to the notice of proposed
rulemaking published in the Federal Register on October 27, 2010, the
Board is formalizing its rules with respect to the Three-Benchmark
methodology for adjudicating simplified rate case complaints, making
the most recent four years of this confidential information available
to parties and permitting the parties to use any combination of the
four years of confidential information when presenting their cases.
DATES: Effective March 12, 2012.
FOR FURTHER INFORMATION CONTACT: Scott Zimmerman at (202) 245-0386.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: The Board is formalizing its rules with
respect to the Three-Benchmark methodology used to adjudicate
simplified rate case complaints. Under the rule we are adopting here,
the Board will release to the parties in Three-Benchmark proceedings
the unmasked Carload Waybill Sample data (Waybill Sample data) \1\ of
the defendant carrier for the four years that correspond with the most
recently published Revenue Shortfall Allocation Method (RSAM) figures.
The parties may then form their traffic comparison groups by choosing
the movements from the released four-year Waybill Sample data that they
believe are the most comparable to the issue movements.
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\1\ The Carload Waybill Sample is a sample of carload waybills
for shipments by all rail carriers that terminate at least 4,500
carloads or 5% of the carloads in any one state. The Waybill Sample
identifies originating and terminating freight stations, the names
of all railroads participating in the movement, the point of all
railroad interchanges, the number of cars, the car types, the weight
in tons, the commodity type, and the freight revenues. The names of
the shipper and consignee are not included in the data set. Other
data in the sample, however, may permit the identification of a
shipper and consignee. Therefore, railroads may encrypt, or
``mask,'' revenue information associated with contract shipments to
safeguard the confidentiality of the contract rates, as required by
49 U.S.C. 11904.
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Background
In Simplified Standards for Rail Rate Cases (Simplified Standards),
EP 646 (Sub-No. 1) (STB served Sept. 5, 2007), aff'd sub nom. CSX
Transp., Inc. v. STB (CSXT I), 568 F.3d 236 (DC Cir. 2009), vacated in
part on reh'g, CSX Transp., Inc. v. STB (CSXT II), 584 F.3d 1076 (DC
Cir. 2009),the Board modified its simplified rail rate guidelines,
creating a Simplified Stand-Alone Cost approach for medium-size rail
rate disputes and revising its Three-Benchmark approach for smaller
rail rate disputes.
The Three-Benchmark method, originally promulgated in 1996,\2\
compares a challenged rate of the ``issue traffic'' (the traffic at
issue in the case), measured as the ratio of the traffic's revenues to
variable costs (R/VC ratio), to the R/VC ratios of a comparison group
of traffic (R/VCCOMP) drawn from the Waybill Sample data of
the defendant carrier.\3\ Under the Three-Benchmark method as revised
in Simplified Standards, each party creates and proffers to the Board a
proposed comparison group (R/VCCOMP), and the Board selects
the one that it concludes is most similar in the aggregate to the issue
movements. The Board then applies a ``revenue adequacy adjustment''
(the ratio of RSAM / R/VC>180) to each movement in the
comparison group and calculates the mean and standard deviation of the
resulting R/VC ratios. If the challenged rate exceeds a reasonable
confidence interval around the estimated mean, it will be presumed
unreasonable, and, absent any ``other relevant factors,'' the maximum
lawful rate will be prescribed at that boundary level.
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\2\ Rate Guidelines--Non-Coal Proceedings, 1 S.T.B. 1004 (1996)
(Simplified Guidelines).
\3\ In addition to the R/VCCOMP benchmark, the two
other benchmarks in the Three-Benchmark methodology are RSAM and R/
VC>180. The RSAM benchmark measures the average markup
that the rail carrier would need to charge all of its ``potentially
captive'' traffic to earn adequate revenues, as measured by the
Board under 49 U.S.C. 10704(a)(2). The R/VC>180 benchmark measures
the average markup over variable costs currently earned by the
defendant carrier on its potentially captive traffic. ``Potentially
captive'' traffic is all traffic priced at or above the 180% R/VC
level, which is the statutory floor for regulatory rail rate
intervention. See Simplified Standards for Rail Rate Cases-2009 RSAM
and R/VC>180Calculations, EP 689 (Sub-No. 2), slip op. at
1 (STB served July 14, 2011) (2009 RSAM and R/VC>180
Calculations). See also 49 U.S.C. 10707(d).
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The rule proposed in Simplified Standards would have required
parties to draw their traffic comparison groups from the most recently
available one year of Waybill Sample data derived from the defendant
carrier's shipments of non-issue traffic. Simplified Standards, slip
op. at 32-33 (STB served July 28, 2006) (Notice of Proposed
Rulemaking). The final rule, however, allowed parties to form
comparison groups using Waybill Sample data from the four years that
correspond with the most recently published RSAM figures. Simplified
Standards, slip op. at 80.
On judicial review, the court concluded that the Board had failed
to provide adequate notice of the final rule regarding the available
date range of Waybill Sample data. Accordingly, the court vacated that
portion of Simplified Standards. CSX II, 584 F.3d at 1078. As a result,
there is currently a gap in the Board's rules; i.e., there is no
defined period for which unmasked Waybill Sample data is to be released
in a Three-Benchmark proceeding.\4\
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\4\ Prior agency precedent is not definitive. The 1996
Simplified Guidelines decision did not discuss how many years of
Waybill Sample data the Board would release to the parties. The
Interstate Commerce Commission's decision in McCarty Farms v.
Burlington Northern Inc., 4 I.C.C.2d 262 (1988), relied on by
shippers, was reversed on appeal in Burlington Northern Railroad v.
ICC, 985 F.2d 589 (DC Cir. 1993), and the letter issued June 8, 2005
in B.P. Amoco Chemical Co. v. Norfolk Southern Railway, NOR 42093,
cited in NSR's and CSXT's June 1, 2010 reply comments (at 11), was
an unpublished letter ruling by Board staff; hence, neither is
precedential.
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On April 2, 2010, the Board issued a notice of proposed rulemaking
for a rule that would provide to the parties in Three-Benchmark
proceedings the unmasked Waybill Sample data of the defendant carrier
for the four years that correspond with the most recently published
RSAM figures. The parties would then draw their comparison groups in
any combination they choose from the released Waybill Sample data. The
Board received comments on this proposal from shippers, rail carriers,
the U.S. Department of Agriculture, and other interested
organizations.\5\ AAR, CP and NSR/CSXT expressed concern that the Board
did not provide the rationales and regulatory objectives behind the
proposed rules. In response, on October 22, 2010, the Board published a
revised notice, which proposed rules identical to those proposed on
April 2, 2010, and
[[Page 15971]]
included an expanded explanation of the rationales and regulatory
objectives behind the proposed rules. Following publication, the Board
received additional comments from rail carriers, shippers, and other
interested organizations.\6\ Although the final rules adopted in this
decision are identical to those published in the two previous notices,
the Board responds in further detail to the comments received in
response to the April 2, 2010 and October 22, 2010 notices.
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\5\ Initial and Reply comments on the April 2, 2010 notice of
proposed rulemaking were filed jointly by American Chemistry
Council, Fertilizer Institute, National Grain And Feed Association,
The National Industrial Transportation League, Consumers United for
Rail Equity, American Forest and Paper Association, Glass Producers
Transportation Council, Alliance for Rail Competition and Montana
Wheat and Barley Commission (collectively Shippers); jointly by
Norfolk Southern Railway Company (NSR) and CSX Transportation, Inc.
(CSXT) (collectively, NS/CSXT); and by Canadian Pacific Railway
Company (CP), Association of American Railroads (AAR), and U.S.
Department of Agriculture (USDA). CSXT also filed separate reply
comments. We cite to these comments as ``Initial'' or ``Reply.''
\6\ Supplemental initial or reply comments on the October 22,
2010 notice were filed by American Chemistry Council, Fertilizer
Institute, National Grain And Feed Association, and National
Industrial Transportation League jointly, and by AAR, CP, and NSR/
CSXT. We cite to these as ``Supp.'' or ``Suppl. Reply.''
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AAR and the commenting rail carriers object to permitting shippers
to draw their comparison group from the four most recently available
years of Waybill Sample data, because of what they characterize as
``regulatory lag.'' \7\ They argue that even the most recent one year
of Waybill Sample data is unlikely to reflect current market conditions
because the data may be up to two years old by the time the Board
publishes the Waybill Sample. They contend that the proposed rule
increases the likelihood of distorted comparison groups and results by
permitting parties to use six-year old data.\8\ AAR further contends
that the Board can address any issues of data insufficiency in
individual cases from the one-year data release by requiring the
carrier to provide its traffic tapes for all movements of the commodity
at issue for the current period.\9\
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\7\ E.g., AAR Supp. at 6-9; CP Initial at 4-9 and Supp. at 2-5;
NSR/CSXT Initial at 7-18 and Supp. at 9-12. CP and NSR/CSXT
mistakenly assumed in their initial comments that the release of one
year of Waybill Sample data was ``the existing rule.'' Seesupra note
5.
\8\ E.g., AAR Initial at 4.
\9\ AAR Initial at 6 n.5.
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Shippers, on the other hand, generally support adoption of the
four-year Waybill Sample data rule. They argue that using multiple
years of Waybill Sample data will smooth out the effects of short term
variations in prices and costs that make up the data. They also claim
that it is necessary to permit the use of four years of Waybill Sample
data because a single year's traffic may not contain sufficient data
from which to derive meaningful or representative comparison groups.
Shippers maintain that the Board should require, rather than merely
permit, parties to incorporate data from each year of the current four-
year Waybill Sample data in developing their R/VCCOMP
comparison groups, because the two other benchmarks (RSAM and R/
VC>180) are calculated using Waybill Sample data for the
same four-year period.\10\
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\10\ Shippers Initial at 8-9.
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Discussion and Conclusions
Parties in a Three-Benchmark rate case may submit a comparison
group from the four-year Waybill Sample data we provide them at the
beginning of the case. This rule simply defines the range of data that
will be available to the parties; it does not dictate how the data will
be used. We are not imposing a rule that forces the parties to submit a
comparison group that includes movements from each year of the four-
year period, or just from the first year, or the last year, or any
particular combination of years. Parties may construct their comparison
groups from any combination of movements drawn from the four-year
Waybill Sample data. We will continue to use the final offer selection
process to select the best comparison group on a case-by-case basis.
We have three reasons for adopting this rule. First, this rule
provides the parties the flexibility needed to tailor their comparison
groups as they see fit. In some cases, a shipper might believe it needs
to use more than one year of data to demonstrate that rates for the
issue traffic were unreasonably high. Thus, a party may, for example,
select its comparison group from data across all four years and argue
that a group selected from all four years is the most comparable to the
movements at issue. On the other hand, a party may select its
comparison group from a single year's data and argue, based on that
case's facts, that the best comparison group is one drawn from only
that year. The Board remains the ultimate arbiter in each case of which
litigant's comparison group it will use to judge the challenged rate.
Second, permitting the parties to draw a comparison group from the
four-year Waybill Sample data should provide enough observations to
draw a valid inference about the maximum lawful rate. One year of data
may in some cases be insufficient to provide a meaningful benchmark for
comparison purposes. The Board was particularly concerned in Simplified
Standards with having sufficient movements of certain hazardous cargoes
(known as toxic inhalation hazards or ``TIH'') for parties to develop
appropriate comparison groups, but our concern about data sufficiency
is broader than that. As USDA noted in its comments (at 3), for
example, because production of some specialty crops may vary
significantly from year to year, shippers of such crops must have the
flexibility to draw upon data generated during multiple year periods.
The rail carriers argue that, instead of permitting the use of four
years of Waybill Sample data, we should instead require the carrier to
make available its most recent traffic data. Using the most recent
traffic data would, according to the carriers, meet the Board's desire
for both flexibility in the selection of the comparison group and
enough observations to make an informed decision.
We disagree. Based on our experience in Stand-Alone Cost (SAC)
cases and in processing the annual Waybill Sample data, we have already
concluded that using the prepared Waybill Sample data is one of the
linchpins to the simplified rate review process. The release of four
years of Waybill Sample data to the parties minimizes the possibility
that additional traffic data will be needed for the parties to develop
their comparison groups.\11\ Moreover, the costs and delays associated
with the collection, preparation, production, verification, and use of
the carrier's most recent traffic data run contrary to Congress's
directive and the Board's objective of devising simplified procedures
for use in small rate cases. Because relief in Three-Benchmark cases is
limited, the costs associated with extensive discovery could
significantly offset, or even eliminate, any rate reduction benefits
from such cases and deter shippers from seeking relief. For example,
relying only on data provided by the carrier presents the problem that,
unlike the Waybill Sample data, the traffic data provided by the
carriers would not include the variable cost data necessary to
determine R/VC ratios.\12\ Adopting the carriers' proposal would
substantially increase the cost of bringing a Three Benchmark case and
impede shippers' ability to seek relief for smaller disputes.
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\11\ The Board noted in Simplified Standards: ``This Three-
Benchmark approach rests on the selection of a useable comparison
group. If a particular movement is so unique that there are
insufficient comparable movements in the Waybill Sample, we will
entertain a reasonably tailored request for comparable movements
from the defendant's own traffic tapes. Such motions will be decided
on a case-by-case basis, but are not encouraged, as they will expand
the cost and time of pursuing relief under this simplified
approach.'' Slip op. at 83.
\12\ As part of the preparation of the Waybill Sample data for
each calendar year, the Board calculates the variable costs for each
movement in the sample using its Uniform Rail Costing System program
and the carriers' R-1 annual financial reports.
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Third, making four years of data available is fully consistent with
the
[[Page 15972]]
basic idea behind the Three-Benchmark approach. As the Board stated in
Simplified Standards (at 73), in the absence of any other suitable
method, a comparison approach can be instructive as to the reasonable
level of contribution to fixed costs (the R/VC ratio) for a particular
captive movement when a second, cost-based approach is also employed to
constrain rail rates. The Three-Benchmark methodology embodies this
approach: it is a comparison-based methodology that applies a cost-
based adjustment-- the ratio of RSAM / R/VC>180 --to the
comparison groups. The Three-Benchmark method begins with the
assumption that, in setting rail rates for captive traffic, ``the
carrier will not exceed substantially the level permitted by the SAC
constraint.'' Id. An adjustment to the R/VC levels of captive traffic
is needed, however, because the rates may be priced below the SAC
constraint due to market forces. Id. Applying the RSAM / R/
VC>180 adjustment factor to the R/VC ratios of the
comparison group adjusts those ratios to those that would be needed for
the carrier to achieve revenue adequacy.\13\ Assuming that the
comparison group has been drawn properly from other captive traffic
with similar characteristics--and the final offer procedures were
adopted to create incentives for both parties to submit a reasonable
comparison group--we concluded that ``these adjusted R/VC ratios would
fairly reflect the maximum lawful rates the carrier could charge those
potentially captive movements.'' Id. Accordingly, the selection of the
best comparison group ``will be governed by which group the Board
concludes provides the best evidence as to the reasonable level of
contribution to joint and common costs for the issue movement.'' Id. at
18.
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\13\ Likewise, the RSAM / R/VC>180 adjustment would
reduce R/VC ratios of the comparison group where the carrier is
earning greater than adequate revenues from its captive traffic.
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The rail carriers argue against using four years of Waybill Sample
data because, they claim, (1) The data will be too stale, (2) the R/
VCCOMP benchmark should have no relationship to the time
period used to calculate the other two benchmarks, and (3) in
calculating the R/VCCOMP benchmark, there is no need to
smooth out business variations in the pricing of similar traffic. The
carriers also claim the proposal is flawed because rates and costs in
the industry and for specific commodities change over time. These
objections are best summarized by NSR and CSXT, both of which declare
that ``the goal of the R/VCCOMP is not to smooth out annual
variations; it is to reflect as accurately as possible current market
conditions in which the carrier establishes the challenged rate.'' NSR/
CSXT Supp. at 6-7.
The carriers' arguments are not persuasive. The fundamental purpose
of the Three-Benchmark approach is not to reflect a snapshot of current
market conditions; it is to use the three benchmarks to decide the
reasonable maximum contribution to joint and common costs for the issue
movement where no cost-based approach is feasible. The R/
VCCOMP benchmark is used to approximate the maximum
reasonable rate that a rail carrier could charge under the SAC
constraint. The Three-Benchmark method compares the R/VC ratios (i.e.,
percentage markups over variable cost) of particular current movements
against the R/VC ratios of comparable movements selected from any mix
of movements within the four years of Waybill Sample data.\14\ One
weakness in employing this benchmark to protect shippers from
unreasonable rates is that the constraint may not always approximate
the maximum reasonable rate under the SAC constraint, particularly over
relatively short observational periods.\15\ By giving parties the
opportunity to select their comparison groups from as much or as little
data as they choose from within multiple years of Waybill Sample data,
the Board can have greater confidence that the adjusted R/VC ratios of
the comparison group (R/VCCOMP) selected through the final
offer process will approximate the maximum reasonable level permitted
by the more precise SAC constraint.\16\
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\14\ The carriers' evidence regarding changes over time in rates
and costs within the industry generally, and for specific
commodities, does not support their position on the issue of data
availability, because the Three-Benchmark method does not compare
current rates against older rates or current costs against
historical costs, but rather R/VC ratios. The carriers have provided
no reason to believe that comparisons of a carrier's R/VC ratios for
similar traffic over different time periods are prima facie
misleading or otherwise invalid. Indeed, the comments submitted by
the rail carriers contain virtually no discussion of R/VC ratios
themselves and are devoid of any evidence that comparisons of R/VC
ratios of similar traffic for different years would skew the results
of the final offer process.
\15\ See Simplified Standards at 76 (observing that R/VC ratios
in the upper end of the comparison group ``might overstate a
reasonable rate, as those rates might themselves be unlawfully
high'').
\16\ The shippers argue that we mandate that comparison groups
be drawn from the same time period as the two other benchmarks.
Parties are free to argue that the time period from which data may
be drawn to determine the R/VCCOMP benchmark should be
consistent with the time period used to determine the R/
VC>180 and R/VCCOMP benchmarks because the
three benchmarks are interrelated. See Simplified Standards at 85.
On the other hand, a party may believe that, for other reasons, a
comparison group drawn from only one or two years of Waybill Sample
data is superior to one drawn from four years of data in a given
case. Allowing, but not requiring, comparison groups to be drawn
from four years of Waybill Sample data is consistent with the
Board's goal of making available to the parties a sufficiently
robust yet easily (and equally) accessible data set from which the
parties are given the maximum flexibility to draw as they see fit to
shape their comparison groups.
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Moreover, we use the parties' comparison group to prescribe the
maximum lawful rate not just at the moment a carrier's rates are
challenged, but for a five year period. The maximum lawful rate for a
movement (i.e., the maximum reasonable contribution to joint and common
costs expressed as an R/VC ratio) may change from year to year, as it
is a function of the amount of joint and common costs that need to be
recovered, as well as the level and the mix of traffic, and the revenue
generated by that traffic. See Simplified Standards at 82. For example,
a carrier with little revenue from competitive traffic in a given year
will need to recover a larger share of joint and common costs from its
potentially captive traffic, id., while in a boom year when the carrier
enjoys stronger revenues from competitive traffic, a carrier would need
to recover less from its potentially captive traffic. It is therefore
reasonable to permit parties broad latitude to draw information about
the R/VC levels charged to comparable traffic from any or all of the
most recent four years of Waybill Sample data for all three benchmarks.
Again, the parties may argue that the circumstances of a particular
case caution against drawing information from a four-year time period,
or that a comparison group drawn from, say, only one or two years of
Waybill Sample data is superior to one drawn from four years of data
because of other characteristics of the selected movements,\17\ or
that, due to the inevitable regulatory lag, a further adjustment to all
three benchmarks is needed (so-called ``other relevant factors'').\18\
We reiterate that the
[[Page 15973]]
Board remains the ultimate arbiter of which litigant's comparison group
it will use to assess the challenged rate(s), and the Board will
consider the extent to which a party's comparison group is most similar
in the aggregate to the issue traffic on a case-by-case basis. The
final offer process gives both parties the opportunity to convince the
Board that its comparison group is most similar to the issue traffic.
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\17\ The rail carriers argue, nonetheless, that they will be
prejudiced by this four-year rule because the Board has not stated
that the age of the movements in a comparison group will be a factor
in deciding which comparison group is most similar to the issue
traffic. This argument is erroneous. The Board has stated previously
that the list of comparability factors in Simplified Standards is
not exclusive and that a rail carrier is free to limit its proposed
comparison group to the most recent movements available in the
Waybill Sample data and to argue that its group is more appropriate
for the Board to select. E.I. Du Pont De Nemours & Co. v. CSXT
Transp. Inc. (DuPont), NOR 42099, slip op. at 2 n.4 (STB served Jan.
15, 2008).
\18\ Citing our rejection of a rail carrier's proposed
adjustment for other relevant factors in DuPont, slip op. at 17-18
(STB served June 30, 2008), some rail carrier commenters maintain
that the Board has foreclosed such adjustments. The carriers are
mistaken. While the Board did not accept the carrier's adjustment
factor in that case, it rejected the proposal because the adjustment
was incomplete. The carriers also argue that the proposed rule's
prohibition on the use of non-public information from their files--
particularly evidence of changes in costs or market conditions--
hampers their ability to show that a shipper's comparison group
consisting of older movements is not comparable to the issue traffic
and effectively precludes them from proving changed conditions as an
``other relevant factor.'' To the contrary, however, evidence
outside the four years of Waybill Sample data provided under this
rule may be used to attempt to demonstrate ``other relevant
factors.'' See Simplified Standards, slip op. at 77-78.
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In addition, complainants should have access to multiple years of
data so that they can make year-to-year comparisons of rate changes to
identify potentially unreasonable carrier pricing behavior. Although
the R/VC ratios of the issue traffic might well be similar to the R/VC
ratios of comparable movements in the current year, they might be
dramatically higher than the R/VC ratios of comparable shipments from
prior years. We see no reason why a complainant should be deprived at
the outset of the case of readily available Waybill Sample data needed
to make that case.\19\
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\19\ Releasing the Waybill Sample for the four years that
correspond with the most recently published RSAM (as opposed to five
years or three years of data) is reasonable because (1) complainants
must have access to that data anyway to verify the Board's
calculation of the RSAM and R/VC>180 benchmarks; and (2)
it provides the complainant the ability to use the same four-year
time period to estimate all three benchmarks used in this analysis.
No party has demonstrated that the release of more Waybill Sample
data is appropriate.
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Finally, NSR and CSXT argue that 49 U.S.C. 10701(d)(1) compels us
to use the most current data when evaluating the reasonableness of
rates. They maintain that the statute ``requires at a minimum that the
comparison group movements reflect the same market conditions that
exist when the railroad established the challenged rate.'' NSR/CSXT
Supp. at 7. Put differently, they argue that when asked to judge the
reasonableness of a rate set in 2010, we cannot perform an analysis of
whether the rate was comparable to rates from 2005-2008. Id.
This statutory argument is unpersuasive for a number of reasons.
First, the statute contains no such directive. Second, when judging the
reasonableness of a particular rate, we routinely look to information
beyond the year when the rate was established. For example, our SAC
test does not judge the reasonableness of the challenged rate by
looking only at a snapshot of the current financial circumstances.
Rather, the SAC test requires a 10-year analysis that is structured to
reflect the variations in the business cycle. See Major Issues In Rail
Rate Cases, EP 657 (Sub-No. 1), slip op. at 61 (STB served Oct. 30,
1996). Some of the variables it takes into account are the annual
tonnage fluctuation, change in tax laws, equity investor expectations,
and inflation in the prices of the assets utilized by the industry.
Coal Trading Corp. v. B&O R.R., 6 I.C.C.2d 361, 411 (1990). Third, in
their example above, the Three-Benchmark approach would not compare the
rate set in 2010 against the rates from 2005-2008; it would judge the
reasonableness of the challenged rate by comparing the R/VC ratio (the
level of contribution to joint and common cost) against the adjusted R/
VC ratios of comparable traffic from 2005-2008. Finally, in a rate
case, we are not asked to determine the maximum lawful rate on the day
the tariff was issued, but for a multi-year prescriptive period.
This decision will not significantly affect either the quality of
the human environment or the conservation of energy resources.
It is ordered:
1. The Board will adopt the rule as set forth in this decision.
2. This decision is effective on the day of service.
3. This decision will be published in the Federal Register.
Decided: March 8, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-6551 Filed 3-16-12; 8:45 am]
BILLING CODE 4915-01-P