Demurrage Billing Requirements

 
CONTENT
Federal Register, Volume 85 Issue 88 (Wednesday, May 6, 2020)
[Federal Register Volume 85, Number 88 (Wednesday, May 6, 2020)]
[Proposed Rules]
[Pages 26915-26922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09684]
[[Page 26915]]
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SURFACE TRANSPORTATION BOARD
49 CFR Chapter X
[Docket No. EP 759]
Demurrage Billing Requirements
AGENCY: Surface Transportation Board.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: In response to comments received in the notice of proposed
rulemaking (NPRM) in this docket, the Surface Transportation Board (STB
or Board) invites parties, through this supplemental notice of proposed
rulemaking (SNPRM), to comment on certain modifications and additions
to the minimum information requirements proposed in the NPRM.
DATES: Comments are due by June 5, 2020. Reply comments are due by July
6, 2020.
ADDRESSES: Comments and replies may be filed with the Board via e-
filing. Written comments and replies will be posted to the Board's
website at www.stb.gov.
FOR FURTHER INFORMATION CONTACT: Sarah Fancher at (202) 245-0355.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: On October 7, 2019, the Board issued a
notice of proposed rulemaking to propose changes to its existing
demurrage regulations to address several issues regarding carriers'
demurrage billing practices. See Demurrage Billing Requirements (NPRM),
EP 759 (STB served Oct. 7, 2019).\1\ Demurrage is subject to Board
regulation under 49 U.S.C. 10702, which requires railroads to establish
reasonable rates and transportation-related rules and practices, and
under 49 U.S.C. 10746, which requires railroads to compute demurrage
charges, and establish rules related to those charges, in a way that
will fulfill the national needs related to freight car use and
distribution and maintenance of an adequate car supply.\2\ Demurrage is
a charge that serves principally as an incentive to prevent undue car
detention and thereby encourage the efficient use of rail cars in the
rail network, while also providing compensation to rail carriers for
the expense incurred when rail cars are unduly detained beyond a
specified period of time (i.e., ``free time'') for loading and
unloading. See Pa. R.R. v. Kittaning Iron & Steel Mfg. Co., 253 U.S.
319, 323 (1920) (``The purpose of demurrage charges is to promote car
efficiency by penalizing undue detention of cars.''); 49 CFR1333.1; see
also 49 CFR pt. 1201, category 106.
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 \1\ The proposed rules were published in the Federal Register,
84 FR 55,109 (Oct. 15, 2019).
 \2\ In Demurrage Liability, EP 707, slip op. at 15-16 (STB
served Apr. 11, 2014), the Board clarified that private car storage
is included in the definition of demurrage for purposes of the
demurrage regulations established in that decision. The Board uses
the same definition of demurrage in this decision.
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 In the simplest demurrage case, a railroad assesses demurrage on
the consignor (the shipper of the goods) for delays in loading cars at
origin and on the consignee (the receiver of the goods) for delays in
unloading cars and returning them to the rail carrier at
destination.\3\ Demurrage, however, can also involve third-party
intermediaries, commonly known as warehousemen or terminal
operators,\4\ that accept freight cars for loading and unloading but
have no property interest in the freight being transported.
Warehousemen do not typically own the property being shipped (although,
by accepting the cars, they could be in a position to facilitate or
impede car supply).
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 \3\ As the Board noted in Demurrage Liability, EP 707, slip op.
at 2 n.2, the Interstate Commerce Act, as amended by the ICC
Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 803,
does not define ``consignor'' or ``consignee,'' though both terms
are commonly used in the demurrage context. Black's Law Dictionary
defines ``consignor'' as ``[o]ne who dispatches goods to another on
consignment,'' and ``consignee'' ``as [o]ne to whom goods are
consigned.'' Demurrage Liability, EP 707, slip op. at 2 n.2 (citing
Black's Law Dictionary 327 (8th ed. 2004)). The Federal Bills of
Lading Act defines these terms in a similar manner. Id. (citing 49
U.S.C. 80101(1) & (2)).
 \4\ This decision uses the terms ``warehousemen'' and ``third-
party intermediaries'' to refer to these entities. This decision
uses ``rail users'' to broadly mean any person or business that
sends goods by rail or receives rail cars for loading or unloading,
regardless of whether that person has a property interest in the
freight being transported.
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 In the NPRM, the Board proposed requirements for minimum
information to be included on or with Class I carriers' demurrage
invoices and proposed that the serving Class I carrier be required to
directly bill the shipper for demurrage when the shipper and
warehouseman agree to that arrangement and so notify the rail carrier.
NPRM, EP 759, slip op. at 8-11, 14-15. In response, the Board received
a significant number of comments from stakeholders.\5\ In light of the
comments received, the Board is issuing this SNPRM to invite comment on
certain modifications and additions to the proposed requirements for
minimum information to be included on or with Class I carriers'
demurrage invoices, as discussed in more detail below.\6\
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 \5\ The Board received comments and/or replies from the
following: American Chemistry Council (ACC); American Forest & Paper
Association; American Fuel & Petrochemical Manufacturers (AFPM);
American Iron and Steel Institute (AISI); American Short Line and
Regional Railroad Association (ASLRRA); ArcelorMittal USA LLC (AM);
Association of American Railroads (AAR); Barilla America, Inc.;
Canadian National Railway Company (CN); Canadian Pacific Railway
Company (CP); Corn Refiners Association (CRA); CSX Transportation,
Inc. (CSXT); Daniel R. Elliott; Diversified CPC International, Inc.
(CPC); Dow, Inc. (Dow); The Fertilizer Institute (TFI); Freight Rail
Customer Alliance; Industrial Minerals Association--North America;
The Institute of Scrap Recycling Industries, Inc. (ISRI);
International Association of Refrigerated Warehouses; International
Liquid Terminals Association; International Paper; International
Warehouse Logistics Association; The Kansas City Southern Railway
Company (KCS); Kinder Morgan Terminals (Kinder Morgan); Lansdale
Warehouse Company; National Association of Chemical Distributors);
The Mosaic Company; National Coal Transportation Association; The
National Industrial Transportation League (NITL); North American
Freight Car Association (NAFCA); Norfolk Southern Railway Company
(NSR); Peabody Energy Corporation; The Portland Cement Association
(PCA); Private Railcar Food and Beverage Association, Inc. (PRFBA);
Quad, Inc.; Union Pacific Railroad Company (UP); Valley Distributing
& Storage Company; Western Coal Traffic League and Seminole Electric
Cooperative, Inc.; and Yvette Longonje.
 \6\ In the NPRM, the Board also proposed that the serving Class
I carrier be required to directly bill the shipper for demurrage
(instead of the warehouseman) when the shipper and warehouseman
agree to that arrangement and so notify the rail carrier. See NPRM,
EP 759, slip op. at 11, 14-15. The direct-billing proposal, and the
comments on that proposal, will be addressed in a separate decision.
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Background
 This proceeding arises, in part, as a result of the testimony and
comments submitted in Oversight Hearing on Demurrage & Accessorial
Charges, Docket No. EP 754. In that proceeding, parties from a broad
range of industries raised concerns about demurrage billing practices,
including issues involving the receipt of invoices containing
insufficient information. See NPRM, EP 759, slip op. at 5-6 (providing
overview of comments received in Docket No. EP 754 related to the
adequacy of demurrage invoices). Warehousemen also raised concerns
related to Class I carriers' billing practices as applied to them
following the Board's adoption of the final rule in Demurrage
Liability, EP 707 (STB served Apr. 11, 2014), codified at 49 CFR part
1333, which established that a person receiving rail cars for loading
or unloading who detains the cars beyond the free time provided in the
rail carrier's governing tariff may be held liable for demurrage if
that person had actual notice, prior to rail car placement, of the
demurrage tariff establishing such liability. See NPRM, EP 759, slip
op. at 6-8 (providing overview of comments received in
[[Page 26916]]
Docket No. EP 754 relating to warehousemen).
 After carefully considering the comments and testimony in Docket
No. EP 754, the Board issued the NPRM in this docket. As relevant here,
the Board proposed requirements for certain minimum information to be
included on or with Class I carriers' demurrage invoices. Specifically,
the Board proposed the inclusion of:
 The unique identifying information (e.g., reporting marks
and number) of each car involved;
 the following shipment information, where applicable:
 [cir] The date the waybill was created;
 [cir] the status of each car as loaded or empty;
 [cir] the commodity being shipped (if the car is loaded);
 [cir] the identity of the shipper, consignee, and/or care-of party,
as applicable; and
 [cir] the origin station and state of the shipment;
 the dates and times of:
 [cir] Actual placement of each car;
 [cir] constructive placement of each car (if applicable and
different from actual placement);
 [cir] notification of constructive placement to the shipper,
consignee, or third-party intermediary (if applicable); and
 [cir] release of each car; and
 the number of credits and debits attributable to each car
(if applicable).
NPRM, EP 759, slip op. at 9-10. The Board also proposed to require
Class I carriers, prior to sending demurrage invoices, to take
``appropriate action to ensure that the demurrage charges are accurate
and warranted, consistent with the purpose of demurrage.'' NPRM, EP
759, slip op. at 10 (footnote omitted). Under the NPRM, both the
minimum information requirements and the ``appropriate action''
requirement would be added in a proposed new regulation at 49 CFR
1333.4.
 In the NPRM, EP 759, slip op. at 10, the Board invited stakeholders
to comment on the proposed rules and on any additional information that
Class I carriers could reasonably provide on or with demurrage invoices
to help shippers and warehousemen effectively evaluate those invoices.
In response to the NPRM, the Board received a significant number of
comments from stakeholders. While rail users generally support the
minimum information requirements proposed by the Board, they identify
additional information that they argue would allow them to evaluate
demurrage invoices more effectively. Class I carriers largely oppose
the proposed minimum information requirements, arguing that they
already provide most (or all) of the required information on their web
platforms and urging the Board to consider a more flexible standard. In
addition, both rail users and Class I carriers ask the Board to clarify
the ``appropriate action'' requirement.
Discussion and Request for Comments
 In the NPRM, the Board explained that the requirements proposed
there were:
intended to ensure that the recipients of demurrage invoices will be
provided sufficient information to readily assess the validity of
those charges without having to undertake an unreasonable effort to
gather information that can be provided by the railroad in the first
instance, to properly allocate demurrage responsibility, and to
modify their behavior if their own actions led to the demurrage
charges.
NPRM, EP 759, slip op. at 10. After reviewing the comments received,
the Board is now considering modifying the proposed regulations at 49
CFR 1333.4 to require certain additional information on or with
demurrage invoices from Class I carriers beyond that discussed in the
NPRM. These additions would include: (1) The date range (i.e., the
billing cycle) covered by the invoice; (2) the original estimated date
and time of arrival (ETA) of each car (as established by the invoicing
carrier) and the date and time each car was received at interchange (if
applicable), either on or with each invoice or, alternatively, upon
reasonable request from the invoiced party; and (3) the date and time
of each car ordered in (if applicable). Finally, the Board is
considering requiring that Class I carriers provide access to demurrage
invoicing data in machine-readable format.
 Below, the Board discusses these additional items, which are in
response to various stakeholders' comments, and invites stakeholders to
comment on their inclusion in section 1333.4(a), the Board's proposed
regulations regarding requirements for demurrage invoices. In addition,
and as discussed below, the Board invites further comment on the
Board's proposed demurrage regulations at section 1333.4(b), which
would require Class I carriers to take ``appropriate action'' to ensure
that demurrage charges are accurate and warranted prior to sending
demurrage invoices.\7\
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 \7\ Comments on the NPRM that are not specifically discussed in
this SNPRM will be considered in a subsequent decision.
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 Billing Cycle. CPC asks the Board to require carriers to include on
demurrage invoices the dates covered by the invoice, which the Board
construes to mean the billing cycle. (CPC Comments 4-5.) Class I
carriers did not respond to this specific request. The information
sought by CPC is standard invoice information that would allow invoice
recipients to easily identify the period covered by the invoice. To
assess the validity of demurrage charges, recipients of demurrage
invoices may need to evaluate the timing of the charges with their own
record of events, and clearer information on the billing cycle would
assist in this assessment. Given the basic nature of the information,
which may already be provided by some carriers, compiling the
information to include it on or with demurrage invoices would not
appear to be burdensome. The Board invites comment on requiring Class I
carriers to include on or with all demurrage invoices the billing
period covered by the invoice.
 Original ETA and Date and Time Cars Received at Interchange.
Several commenters identify the original ETA and, if applicable, the
date and time that cars are received at interchange, as information
that would give rail users greater visibility into how carrier-caused
bunching,\8\ which has been of concern to the Board,\9\ and other
delays affect demurrage charges.
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 \8\ Recently, the Board has described bunching as ``rail car
deliveries that are not reasonably timed or spaced.'' See Demurrage
Liability, EP 707, slip op. at 23.
 \9\ In Docket No. EP 754, the Board invited stakeholders to
comment on their recent experiences with demurrage and accessorial
charges pertaining to bunching, including bunching that may be
attributable to upstream rail carriers. See Oversight Hearing on
Demurrage & Accessorial Charges, EP 754, slip op. at 3 (STB served
Apr. 8, 2019). In response, rail users across a broad range of
industries described issues related to bunching, including that they
regularly experience demurrage charges associated with bunched
deliveries. See Policy Statement on Demurrage & Accessorial Rules &
Charges, EP 757, slip op. at 13 n.38 (STB served Oct. 7, 2019)
(describing comments received in Docket No. EP 754 relating to
bunching). Some rail carriers in that proceeding stated that they
award credits for bunching in some instances but did not describe
with specificity how these credits are awarded or otherwise address
the concerns expressed by rail users. See id. at 13-14 (describing
comments submitted in Docket No. EP 754).
 Additionally, the Board provides guidance on the general
principles it expects to consider when evaluating the reasonableness
of demurrage and accessorial rules and charges in future cases,
including those that involve claims of carrier-caused bunching, by
separate decision. See Policy Statement on Demurrage & Accessorial
Rules & Charges, EP 757 (STB served Apr. 30, 2020).
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 First, commenters state that, if the original ETA were included on
carriers' demurrage invoices, rail users could compare that ETA to the
car placement information in order to better recognize if carrier-
caused problems, including bunching, may have impacted the
[[Page 26917]]
timing of a car's placement. (ACC Comments 1; Dow Comments 5-6.) With
this information, commenters assert that they would know when to
dispute demurrage charges attributable to carriers' actions and could
verify credits when applicable. For example, ISRI alleges that one
Class I carrier, which provides credits for early or late arrivals,
will occasionally replace the original ETA if delays occur. (ISRI
Comments 9.) ISRI contends that, if rail users have access to the
original ETA on demurrage invoices, they would be able to avoid the
``burdensome and unfair administrative process'' of tracking original
ETAs, thereby mitigating the risk that rail users do not receive the
number of credits they are ``entitled to receive.'' (Id.) Furthermore,
AFPM and PRFBA argue that requiring carriers to provide original ETA
information on demurrage invoices would encourage them to apply
increased scrutiny to demurrage invoices before sending them. (AFPM
Comments 6; PRFBA Comments 1-2.) Dow reasons that this additional
requirement would not be unreasonably burdensome for carriers because
they already generate this information in the normal course of business
in order to account for delays when assessing demurrage. (Dow Comments
6.)
 Second, commenters identify the date and time at which a delivering
carrier received rail cars at interchange, if applicable, as useful
information that would help rail users identify upstream carrier-caused
bunching. (ACC Comments 2; Dow Comments 6.) ACC and Dow explain that
delivering carriers do not award demurrage credits for delays caused by
upstream carriers and, without interchange information, rail users
cannot identify these delays themselves. (ACC Comments 2; Dow Comments
6.) Dow argues that having interchange information would allow rail
users to calculate the transit time on an upstream carrier's line and
credibly approach the upstream carrier about assuming responsibility
for any demurrage it causes. (Dow Comments 6.) Dow contends that this
requirement would not be unreasonably burdensome for carriers since
they must generate this information already in order to account for
delays on joint-line shipments. (Id. at 7.)
 Several Class I carriers briefly reference these proposed additions
in their replies, generally suggesting that it is unnecessary to
require this information on invoices. For example, CSXT states that its
web platform currently provides rail users with the original ETA and
date and time of interchange, and that requiring carriers to include
the additional items requested by commenters would add to the
``burdensome paperwork requirements'' that, according to CSXT, would be
created by the NPRM. (CSXT Reply 2, 4.) UP contends that the date and
time at which rail cars were received at interchange is information
that ``only applies to a subset of shippers' operations'' and would not
be useful for a majority of ``customers [for whom] the invoice acts as
an end-of-month summary of charges.'' (UP Reply 3.) \10\
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 \10\ NSR also indicates that its web platform does not provide
users with information about ``bunching events'' because they are
subjective, though it is unclear precisely what type of bunching
information NSR is referencing here. (NSR Reply 1.)
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 As discussed in the NPRM, the purpose of the Board's proposed rule
is to ensure that the recipients of demurrage invoices will be provided
sufficient information in demurrage invoicing so that they can more
easily determine the cause of demurrage charges, verify the validity of
those charges, properly allocate demurrage responsibility, and modify
their behavior if their own actions led to the demurrage charges. NPRM,
EP 759, slip op. at 10. Based on the comments and replies received in
response to the NPRM, it appears that the inclusion of the original ETA
of each car (as established by the invoicing carrier) and the date and
time at which cars are received at interchange, if applicable, on or
with invoices may further these objectives by helping recipients
identify sources of delay and carrier-caused bunching and assess the
validity of any resulting demurrage charges. Moreover, this information
appears to be readily available to carriers as it is used in the
ordinary course of business to track car movement and place cars.\11\
Accordingly, the Board invites comments on revisions to proposed
section 1333.4 that would require Class I carriers to provide on or
with their demurrage invoices (1) the original ETA of each car (as
established by the invoicing carrier); \12\ and (2) the date and time
at which each car was received at interchange, if applicable. The Board
also invites comment on whether the requirement that Class I carriers
provide the date and time at which each car was received at
interchange, if applicable, should be limited to the last interchange
with the invoicing carrier.
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 \11\ See CSXT Reply 4 (explaining that it already provides this
information on its web platform).
 \12\ The Board also invites comment on how to define ``original
ETA,'' which was not defined by commenters, and whether the original
ETA may differ depending on whether the rail car is loaded or empty.
The Board notes that NSR's current tariff states the following with
respect to original ETA: ``Following interchange or release of
shipment and complete billing to final destination, the first
reported movement on [NSR] will generate the NSR Original Estimated
Time of Availability (ETA). Though the time of availability may
change during transit due to delays or advances en route, it is the
original NSR ETA against which an early or late shipment will be
measured.'' NSR Tariff 6004-D, Item 200 (effective Sept. 1, 2019).
The Board seeks comment on whether, for example, original ETA should
be generated promptly following interchange or release of shipment
to the invoicing carrier and be based on the first movement of the
invoicing carrier.
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 The Board also recognizes, however, that bunching information may
not be relevant to every invoice recipient in all circumstances.
Accordingly, the Board also invites comment on whether Class I carriers
should instead be required to provide these items to the invoiced party
upon reasonable request, but not include them on or with every
invoice.\13\ A request for this information might be reasonable when
the invoiced party has reason to believe that carrier-caused bunching
occurred and cannot otherwise easily access the requested information.
A request might not be reasonable if a carrier already provides the
information to the invoiced party through other means, including the
carrier's web-based platform, so long as it is easily accessible and
remains easily accessible on or with the demurrage invoice. Comment is
invited on what would constitute a reasonable request.
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 \13\ Many commenters support requiring Class I carriers to
provide supporting information, upon request from the invoiced
party, to help recipients verify that the demurrage charges are
accurate and warranted. While these commenters' suggestions for
information that should be available upon request vary in scope,
they all ask that invoice recipients be allowed to request
information that can provide more visibility into bunching. (See,
e.g., Kinder Morgan Comments 14; AISI Comments 9-10; AM Comments 6;
ISRI Reply 13.) In response to one of these comments, NSR argues
that providing specific information upon request would essentially
force the carrier to prove its case to a rail user, allow that user
to still refuse to pay the railroad, and then require the railroad
to sue and prove its case all over again in court. (NSR Reply 3.)
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 Ordered-In Date and Time. Several commenters ask the Board to
require carriers to specify, if applicable, the date and time that cars
were ordered into a rail user's facility. (ACC Comments 2; Dow Comments
4; CPC Comments 4-5.) Dow explains that, at closed-gate facilities,
carriers cannot place cars until they receive approval from those
facilities, at which time demurrage stops accruing. (Dow Comments 4 &
n.4.) Both Dow and ACC argue that ordered-in information would allow
rail users to ``validate demurrage charges, alter their practices to
prevent similar demurrage events, and hold railroads accountable for
railroad-caused delays.'' (ACC Comments 2; see also Dow Comments 4.)
Dow acknowledges that many rail users would have ordered-in
[[Page 26918]]
information in their own records, reflecting the date on which the rail
user believes it ordered the car. (Dow Comments 4.) However, Dow argues
that requiring carriers to provide ordered-in information on demurrage
invoices would allow rail users to ``quickly ascertain whether the
carrier has used the correct dates for calculating demurrage'' and
validate invoices more efficiently. (Id.) Dow also argues that
requiring the ordered-in date and time, at which the accrual of
demurrage stops, would be consistent with the Board's proposal to
require the date and time of constructive placement, at which the
accrual of demurrage starts. (Id. at 5.) Dow maintains that providing
this information would not place an unreasonable burden on carriers
since they already have this information readily available to calculate
demurrage charges. (Id.) ACC and Dow also note that one carrier already
provides this information on demurrage invoices. (ACC Comments 2; Dow
Comments 5.) Class I carriers did not respond specifically to this
proposed addition.
 Because the ordered-in date and time is essential to the
calculation of demurrage at closed-gate facilities, such information
would be valuable on or with demurrage invoices for both demurrage
accrual and verification purposes. As stakeholders explain, the
ordered-in date and time stops the accrual of demurrage at closed-gate
facilities and also impacts how certain carriers calculate credits. For
example, UP has stated that it issues ``one credit per day from the
time a rail car is ordered into a customer's facility until it is
delivered,'' as well as ``one credit per rail car not supplied'' if UP
``fails to supply a rail car that the customer ordered and the customer
has capacity within its facility to take the rail car.'' \14\ The Board
also understands that disagreements over the ordered-in date and time
may be the source of some demurrage disputes. In Oversight Hearing on
Demurrage & Accessorial Charges, Docket No. EP 754, rail users
described issues with demurrage charges accruing after cars had been
ordered into a facility.\15\ If rail users have easy access to the
carriers' ordered-in date and time to compare against their own
records, then they may be better equipped to verify demurrage invoices
and spot any discrepancies. Because rail carriers use this information
in the ordinary course of business to compute demurrage invoices,
compiling this information to provide it on or with demurrage invoices
would not appear to be burdensome. Accordingly, the Board invites
comment on a modification to proposed section 1333.4 that would require
Class I carriers to provide the ordered-in date and time on or with
demurrage invoices.
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 \14\ UP Comments 2-3, May 8, 2019, Oversight Hearing on
Demurrage & Accessorial Charges, EP 754.
 \15\ Hr'g Tr. 387:2-387:17, May 22, 2019, Oversight Hearing on
Demurrage & Accessorial Charges, EP 754 (Ag Processing, Inc.,
stating that it had experienced demurrage charges accruing on cars
that were ordered into a facility after more conveniently-placed
cars were switched instead); Brainerd Chemical Company, Inc.,
Comments 4, May 8, 2019, Oversight Hearing on Demurrage &
Accessorial Charges, EP 754 (describing being charged demurrage for
two cars that had been previously ordered into its facility and not
switched as scheduled); Packaging Corporation of America Comments 4-
5, May 8, 2019, Oversight Hearing on Demurrage & Accessorial
Charges, EP 754 (asserting that five missed switches resulted in
demurrage charges of $15,500 at one location in one month).
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 Machine-Readable Data. Many commenters express a preference for
``machine-readable'' data.\16\ Certain commenters define this term as
``a structured data file format that is open and capable of being
easily processed by a computer,'' including ``Comma Separated Values
(CSV), Office Open XML ([XLSX]), and OpenDocument Spreadsheet (ODS).''
(Joint Reply (ACC, CFA, TFI, and NITL) 2 n.2; see also Dow Reply 2
n.3.) They state that ``a format is open if it is not limited to a
specific software platform and not subject to restrictions on re-use.''
(Joint Reply (ACC, CFA, TFI, and NITL) 2 n.2; see also Dow Reply 2
n.3.) Commenters explain that most railroads currently provide invoices
in PDF or paper format, which necessitates manual and resource-
intensive review, the burden of which may cause rail users to pay large
amounts in erroneous charges that are difficult to detect. (Joint Reply
(ACC, CFA, TFI, and NITL) 2, 4-6; Dow Reply 2, 6.) They argue that,
conversely, machine-readable data would allow users to efficiently and
effectively audit the invoices through coding and automation. (Joint
Reply (ACC, CFA, TFI, and NITL) 4-5; Dow Reply 6.) Commenters reference
NSR as the only Class I carrier that currently invoices in a machine-
readable format. (Joint Reply (ACC, CFA, TFI, and NITL) 4; Dow Reply
6.) Commenters state that many Class I carriers do not allow access to
machine-readable data on their web-based platforms, and, to the extent
that carriers do allow such access,\17\ commenters say that this
information is not easily accessible, is cumbersome to download, or is
available only for a limited time period. (Joint Reply (ACC, CFA, TFI,
and NITL) 3-4; Dow Reply 5-6.)
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 \16\ AISI Comments 10; Joint Reply (ACC, CFA, TFI, and NITL) 4;
Dow Reply 6; ISRI Reply 13.
 \17\ Commenters cite CSXT and UP as carriers that allow access
to machine-readable data on their web-based platforms. (Joint Reply
(ACC, CFA, TFI, and NITL) 3; Dow Reply 6.) CP also states that it
allows users to download some data from its web portal into a
Microsoft Excel spreadsheet for analysis purposes. (CP Comments,
V.S. Melo 4, 6, 11, 13.)
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 Machine-readable invoicing may be one way to make the process of
verifying demurrage charges less burdensome for invoice recipients and
thereby further the Board's objective to make demurrage invoices more
transparent and information related to demurrage charges more
accessible. However, as some advocates note, electronic auditing may
involve coding and require upfront costs, (Joint Reply (ACC, CFA, TFI,
and NITL) 5), and the Board expects that some smaller rail users would
not have the resources to use machine-readable data. Furthermore, while
NSR states that it currently offers machine-readable formatting,\18\
the Board does not have information about how large of an undertaking
machine-readable formatting would be for those Class I carriers that do
not currently offer this data format.\19\ For these reasons, the Board
invites comments on matters that may be associated with modifying
section 1333.4 to require Class I carriers to provide machine-readable
data, such as through a machine-readable invoice, a separate electronic
file containing machine-readable data, or a customized link so the rail
user could directly download the data in a machine-readable format. It
would be at each rail carrier's discretion to select how to provide
rail users access to the machine-readable data. With this potential
modification, the Board does not intend that invoice information would
be available to rail users only in a machine-readable format that would
render it inaccessible to rail users without resources for coding or
new upfront costs. The Board invites comment on ways to prevent such
inaccessibility. The Board also invites comment from smaller rail users
on whether machine-readable data would provide them with greater access
to information, and on any other issues pertaining to the
[[Page 26919]]
accessibility of machine-readable data for smaller rail users.
Furthermore, the Board invites comment on how to define ``machine-
readable,'' including the following definition proposed by commenters:
``a structured data file format that is open and capable of being
easily processed by a computer. A format is open if it is not limited
to a specific software platform and not subject to restrictions on re-
use.'' (Joint Reply (ACC, CFA, TFI, and NITL) 2 n.2; see also Dow Reply
2 n.3.)
---------------------------------------------------------------------------
 \18\ See NSR Reply 1-2 (also requesting that ``the Board clarify
that the information specified in the [NPRM] need not appear on
physical demurrage invoices and instead need only be readily
accessible via web-based applications in machine-readable format'').
 \19\ See Publ'n Requirements for Agricultural Prods., EP 528
(Sub-No. 1) et al., slip op. at 8 (STB served June 30, 2017)
(indicating that the Board did not yet have enough information about
the burden that would be associated with a requested machine-
readability requirement for agricultural rate and service
information).
---------------------------------------------------------------------------
 Appropriate Action to Ensure Demurrage Charges Are Accurate and
Warranted. Section 1333.4(b) of the rule proposed in the NPRM would
require Class I carriers to ``take appropriate action to ensure that
the demurrage charges are accurate and warranted'' prior to sending
demurrage invoices. Several commenters support this provision,\20\ but
some express concern that it will create more uncertainty and potential
litigation over its meaning.\21\ In order to clarify this requirement,
certain commenters offer their own definitions for actions that would
qualify. For example, NAFCA suggests a revision to proposed section
1333.4(b) that would require Class I carriers to provide ``a concise
explanation of how the charge was calculated and the carrier's reasons
for the charge being assessed.'' (NAFCA Comments 3.) AFPM asks the
Board to compel carriers, as part of this requirement, to furnish
specific types of documentation, such as signed and certified
documents, photographs, and original trip plans to confirm the accuracy
of the charges. (AFPM Comments 7.)
---------------------------------------------------------------------------
 \20\ See, e.g., NITL Comments 10; TFI Comments 4; CRA Comments
4; NACD Comments 4; PCA Comments 5.
 \21\ See, e.g., NAFCA Comments 3; KCS Comments 6; CSXT Comments
11; CN Comments 8.
---------------------------------------------------------------------------
 CN expresses concern that if the proposal ``were interpreted to
require that every single invoice be manually double-checked before it
is sent, significant additional resources would have to be deployed to
perform busy work of reviewing invoices that already have a high degree
of accuracy,'' which would only slow down the invoicing process. (CN
Comments 8.) CN states that it already dedicates a team of ten
employees to review the accuracy of demurrage invoices ``using a highly
structured process, with the focus being proactive adjustment of
optional services invoices before they are issued.'' (Id.) Likewise,
KCS states that it believes it already takes appropriate action to
ensure that its demurrage bills are accurate as evidenced by the fact
that ``only a very small fraction'' of the invoices are disputed. (KCS
Comments 6.)
 Whether a carrier has taken appropriate action to ensure that
demurrage charges are accurate and warranted depends on the particular
facts and circumstances of a situation. Since Class I carriers utilize
different invoicing systems, one carrier may be able to ensure accuracy
in its invoicing system by different methods than another. ISRI calls
upon Class I carriers to explain the actions they currently take to
ensure the accuracy of their demurrage invoices, as those responses
could ``assist the Board in determining and clarifying steps the
railroads may need to take to achieve this important objective.'' (ISRI
Reply 13.) The Board agrees that such information would be useful in
its consideration of proposed section 1333.4(b) and, accordingly,
invites further comments from the Class I carriers regarding what
actions they currently take, and from all stakeholders on what actions
Class I carriers reasonably should be required to take, to ensure that
demurrage invoices are accurate and warranted.
Conclusion
 For the reasons discussed above, the Board invites comments on the
additions to proposed 49 CFR 1333.4 discussed in this decision, as well
as further comment on the Board's proposal that Class I carriers be
required to take ``appropriate action to ensure that demurrage charges
are accurate and warranted.'' Comments will be due by June 5, 2020;
replies will be due July 6, 2020.
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. Sections 601-604. In
its notice of proposed rulemaking, the agency must either include an
initial regulatory flexibility analysis, section 603(a), or certify
that the proposed rule would not have a ``significant impact on a
substantial number of small entities,'' section 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 proposed rule. White Eagle Coop. v. Conner, 553
F.3d 467, 480 (7th Cir. 2009).
 In the NPRM, the Board limited its proposal to Class I carriers and
does not modify that proposal here.\22\ Accordingly, the Board again
certifies under 5 U.S.C. 605(b) that this rule would not have a
significant economic impact on a substantial number of small entities
as defined by the RFA.\23\ A copy of this decision will be served upon
the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business
Administration, Washington, DC 20416.
---------------------------------------------------------------------------
 \22\ Arguments that the Board should require Class II and III
carriers to comply with proposed section 1333.4 will be addressed in
a future decision.
 \23\ For the purpose of RFA analysis, the Board defines a
``small business'' as only including those rail carriers classified
as Class III carriers under 49 CFR 1201.1-1. See Small Entity Size
Standards Under the Regulatory Flexibility Act, EP 719 (STB served
June 30, 2016) (with Board Member Begeman dissenting). Class III
carriers have annual operating revenues of $20 million or less in
1991 dollars ($39,194,876 or less when adjusted for inflation using
2018 data). Class II carriers have annual operating revenues of less
than $250 million in 1991 dollars ($489,935,956 when adjusted for
inflation using 2018 data). The Board calculates the revenue
deflator factor annually and publishes the railroad revenue
thresholds on its website. 49 CFR 1201.1-1; Indexing the Annual
Operating Revenues of R.Rs., EP 748 (STB served June 14, 2019).
---------------------------------------------------------------------------
Paperwork Reduction Act
 In this decision, the Board invites parties to comment on possible
revisions to its proposed rule that would require Class I carriers to
include certain additional information on or with their demurrage
invoices. 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, 5 CFR 1320.8(d)(3), and the
NPRM's Appendix, about the impact of the proposed rule on the currently
approved collection of the Demurrage Liability Disclosure Requirements
(OMB Control No. 2140-0021). Specifically, the Board sought comments
regarding: (1) Whether the 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.
[[Page 26920]]
 In the NPRM, the Board estimated that the proposed requirements for
minimum information to be included on or with Class I carriers'
demurrage invoices would add a total one-time hourly burden of 280
hours (or 93.3 hours per year as amortized over three years) because,
in most cases, those carriers would likely need to modify their billing
systems to implement some or all of these changes. NPRM, EP 759, slip
op. at 13. The Board also estimated that the proposed requirement that
Class I carriers take appropriate action to ensure that demurrage
charges are accurate and warranted would add a total one-time hourly
burden of 560 hours (or 186.7 hours per year as amortized over three
years) because Class I carriers would likely need to establish or
modify appropriate demurrage invoicing protocols and procedures.
Id.\24\
---------------------------------------------------------------------------
 \24\ The Board also provided an hourly burden estimate for the
proposal that Class I carriers directly bill the shipper for
demurrage when the shipper and warehouseman agree to that
arrangement and so notify the rail carrier. Id. Comments pertaining
to this hourly burden estimate will be addressed in a separate
decision.
---------------------------------------------------------------------------
 The Board received comments from CSXT and CN pertaining to the
collection of this information under the PRA.\25\ CSXT and CN both
argue that the Board's 280-hour estimate of the time it would take
Class I carriers to modify their invoicing systems is too low for those
Class I carriers that would need to make modifications to comply with
the proposed rule. CSXT contends that, if the Board requires Class I
carriers to provide the required information on demurrage invoices
(rather than solely on their web platforms), then it would need nine
months to implement a software redesign. (CSXT Reply Comments 6.) CN
does not believe that it would need to adjust its invoicing system to
comply with the proposed requirements; however, it argues that the time
necessary to implement invoicing system changes, including ``software
development,'' ``internal training,'' and ``communications with
customers about changes'' could ``easily encompass hundreds of hours.''
(CN Comments 20-21.) Moreover, CN maintains that the Board's 560-hour
estimate of the time it would take Class I carriers to establish or
modify appropriate demurrage invoicing protocols and procedures to
ensure that demurrage charges are accurate and warranted is
``significantly understated'' because the NPRM appears to propose an
ongoing review requirement for every individual invoice, which would
require ongoing time and effort. (Id. at 21.)
---------------------------------------------------------------------------
 \25\ Additionally, ASLRRA argues that the Board's collection of
information under the PRA is deficient because it does not address
the hourly burdens on Class II and Class III carriers, should the
proposed rule be extended to them. (ASLRRA Comments 4.) However,
such a discussion in the NPRM would have been unnecessary because
the proposed rule excludes Class II and Class III carriers from its
requirements. The Appendix below addresses the burdens to those
carriers for the existing collection.
---------------------------------------------------------------------------
 CN and CSXT argue that the estimated burden to modify demurrage
invoices or establish or modify demurrage invoicing protocols should be
larger than the Board estimated in the NPRM, but neither provides
quantitative analysis or data to support any particular increases.
Further, CSXT's estimate of ``nine months'' and CN's estimate of
``hundreds of hours'' appear overstated in comparison to other software
programming requirements recently estimated by the Board or proposed by
carriers. See Pet. for Rulemaking to Amend 49 CFR part 1250, EP 724
(Sub-No. 5), slip op. at 5-6 (STB served Sept. 30, 2019) (noting that
rail carriers estimated that it would take 80 hours to make software
changes necessary for proposed new performance reporting requirements);
Waybill Sample Reporting, EP 385 (Sub-No. 8), slip op. at 13, 16 (STB
served Nov. 29, 2019) (proposing a one-time burden of 80 hours to
implement programming changes). Nonetheless, based on CSXT's and CN's
stated concern that Class I carriers would collectively need more than
280 hours to modify their invoicing systems to include the proposed
minimum information requirements, the Board will increase its estimate
from 280 hours (or 40 hours per Class I carrier) to 560 hours (or 80
hours per Class I carrier). The Board expects that the 560 hours would
cover the time Class I carriers would need to include the possible
modifications discussed in the SNPRM, especially given that this
information appears to be readily available to carriers in the ordinary
course of their business. Furthermore, the Board would expect that
Class I carriers would only need to undertake one software redesign to
incorporate both the proposed minimum information requirements
discussed in the NPRM and the proposed revisions discussed in the
SNPRM.
 Similarly, in response to CN's contention that the Board's estimate
of the time it would take Class I carriers to establish or modify
appropriate demurrage invoicing protocols and procedures is
``significantly understated,'' the Board will increase its estimate
from 560 hours (or 80 hours per Class I carrier) to 840 hours (or 120
hours per Class I carrier). However, with respect to CN's argument that
the requirement that Class I carriers take appropriate action to ensure
that demurrage charges are accurate and warranted necessitates both a
one-time hourly burden to establish or modify invoicing procedures and
an additional hourly burden for continuing review of demurrage
invoices, the Board declines to adjust the hourly burden for an ongoing
review requirement since, as Class I carriers have indicated, they
review invoices in the ordinary course of business.\26\
---------------------------------------------------------------------------
 \26\ See CSXT Comments 5, May 8, 2019, Oversight Hearing on
Demurrage & Accessorial Charges, EP 754 (stating that CSXT has a
team dedicated to reviewing demurrage matters); CN Comments 8, May
8, 2019, Oversight Hearing on Demurrage & Accessorial Charges, EP
754 (stating that invoices go through ``internal validating
processes that include both system and manual processes to validate
that the charges are accurate''); BNSF Railway Company Comments 6,
May 8, 2019, Oversight Hearing on Demurrage & Accessorial Charges,
EP 754 (stating that ``BNSF independently undertakes a rigorous
review of demurrage pre-bills to ensure that billing is occurring in
appropriate circumstances before a bill ever leaves the building'').
---------------------------------------------------------------------------
 The Board welcomes comments on the estimates of actual time and
costs of compliance with the possible modifications to its proposed
invoicing requirements for Class I carriers. Information pertinent to
these issues is included in the Appendix below and will be submitted to
OMB for review as required under 44 U.S.C. 3507(d) and 5 CFR
1320.11(b). Once the comment period ends, comments received by the
Board regarding the information collection will also be forwarded to
OMB for its review.
List of Subjects in 49 CFR Part 1333
 Penalties, Railroads.
 It is ordered:
 1. The Board requests comments on revisions to its proposed rule as
set forth in this decision. Notice of this request for comment will be
published in the Federal Register.
 2. The procedural schedule is established as follows: Comments on
this decision are due by June 5, 2020; replies are due by July 6, 2020.
 3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
 4. This decision is effective on its service date.
 Decided: April 30, 2020.
 By the Board, Board Members Begeman, Fuchs, and Oberman.
Jeffrey Herzig,
Clearance Clerk.
 Note: The Appendix below will not appear in the Code of Federal
Regulations.
[[Page 26921]]
Appendix
Information Collection
 Title: Demurrage Liability Disclosure Requirements.
 OMB Control Number: 2140-0021.
 Form Number: None.
 Type of Review: Revision of a currently approved collection.
 Summary: As part of its continuing effort to reduce paperwork
burdens, and as required by the Paperwork Reduction Act of 1995
(PRA), the Surface Transportation Board (STB or Board) gives notice
that it is requesting from the Office of Management and Budget (OMB)
approval for the revision of the currently approved information
collection, Demurrage Liability Disclosure Requirements, OMB Control
No. 2140-0021. The requested revision to the currently approved
collection is necessitated by the NPRM (which proposed requirements
for certain minimum information to be included on or with Class I
carriers' demurrage invoices and proposed that serving Class I
carriers be required to directly bill the shipper, instead of the
warehouseman, for demurrage when the shipper and warehouseman agree
to that arrangement and so notify the rail carrier) and this SNPRM
(which invites parties to comment on certain modifications and
additions to the minimum information requirements proposed in the
NPRM). All other information collected by the Board in the currently
approved collection is without change from its approval, except for
an update to the number of non-Class I carriers (currently expiring
on June 30, 2020).
 Respondents: Freight railroads subject to the Board's
jurisdiction.
 Number of Respondents: 684 (including seven Class I carriers).
 Estimated Time per Response: The estimated hourly burden for
demurrage liability notices for new customers remains one hour per
notice. The modification sought here for certain minimum information
to be included on or with Class I carriers' demurrage invoices is an
estimated annualized one-time hourly burden--resulting from an
adjustment to the seven Class I carriers' billing systems--of 80
hours per railroad. The modification requiring Class I carriers to
take appropriate action to ensure that the demurrage invoices are
accurate and warranted is an estimated annualized one-time hourly
burden of 120 hours. The modification requiring Class I carriers to
directly bill the shipper for demurrage when the shipper and
warehouseman agree to that arrangement and so notify the rail
carrier is an estimated annual hourly burden of one hour per
agreement.\27\
---------------------------------------------------------------------------
 \27\ In a final rule decision issued on the same day as this
decision, the Board increased its estimate of the time Class I
carriers would need to implement direct billing from five minutes
per agreement to one hour per agreement. See Demurrage Billing
Requirements, EP 759, slip op. at 16-17 (STB served Apr. 30, 2020).
---------------------------------------------------------------------------
 Frequency: On occasion. The existing demurrage liability
disclosure requirement is triggered in two circumstances: (1) When a
shipper initially arranges with a railroad for transportation of
freight pursuant to the rail carrier's tariff; or (2) when a rail
carrier changes the terms of its demurrage tariff. The modification
sought here makes three changes to the existing collection, as
follows: (1) One-time adjustments to the Class I railroads' billing
systems to (a) include certain minimum information on or with
demurrage invoices and (b) take appropriate action to ensure that
the demurrage invoices are accurate and warranted; and (2) an annual
adjustment to the Class I carriers' billing practices to directly
bill the shipper for demurrage when the warehouseman and the shipper
agree to that arrangement and so notify the rail carrier (estimated
60 agreements).
 Total Burden Hours (annually including all respondents): 1,896.7
hours. Consistent with the existing, approved information
collection, Board staff estimates that: (1) Seven Class I carriers
would each take on 15 new customers each year (105 hours); (2) each
of the seven Class I carriers would update its demurrage tariffs
annually (2.3 hours); (3) 677 non-Class I carriers (which are
already subject to the existing collection requirements, but which
will not be subject to the new requirements) would each take on one
new customer a year (677 hours); and (4) each of the non-Class I
carriers would update its demurrage tariffs every three years (225.7
hours annualized). For the modification to include certain minimum
information on or with demurrage invoices, Board staff estimates
that, on average, each Class I carrier would have a one-time burden
of 80 hours (560 total hours). Amortized over three years, this one-
time burden equals 186.7 hours per year. For the modification
requiring each Class I carrier to take appropriate action to ensure
that demurrage charges are accurate and warranted, Board staff
estimates that, on average, each Class I carrier would have a one-
time burden of 120 hours (840 total hours) to establish or modify
appropriate protocols and procedures. Amortized over three years,
this one-time burden equals 280 hours per year. For the modification
requiring Class I carriers to directly bill the shipper for
demurrage when the shipper and warehouseman agree to that
arrangement and so notify the rail carrier, Board staff estimates
that annually seven Class I carriers would each receive 60 direct-
billing agreements per year at one hour per agreement (420 hours).
 The total hourly burdens are also set forth in the table below.
 Table--Total Burden Hours
 [per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Estimated one-
 Estimated one- time burden Estimated
 Existing Existing time burden for annual burden Total yearly
 Respondents annual burden annual update for appropriate for invoicing burden hours
 burden (hours) additional protocols agreement
 data (hours) (hours) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
7 Class I Carriers...................................... 105 28 2.3 186.7 280 420 994
677 Non-Class I Carriers................................ 677 225.7 .............. .............. .............. 902.7
 -----------------------------------------------------------------------------------------------
 Totals.............................................. 782 228 186.7 280 420 1,896.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Total ``Non-hour Burden'' Cost: There are no other costs
identified.
---------------------------------------------------------------------------
 \28\ In the NPRM, the Board used seven hours for the existing
annual update burden for Class I carriers; however, this number has
been corrected to 2.3 hours to reflect the average over three years.
---------------------------------------------------------------------------
 Needs and Uses: Demurrage is subject to Board regulation under
49 U.S.C. 10702, which requires railroads to establish reasonable
rates and transportation-related rules and practices, and under 49
U.S.C. 10746, which requires railroads to compute demurrage charges,
and establish rules related to those charges, in a way that will
fulfill the national needs related to freight car use and
distribution and maintenance of an adequate car supply. Demurrage is
a charge that serves principally as an incentive to prevent undue
car detention and thereby encourage the efficient use of rail cars
in the rail network, while also providing compensation to rail
carriers for the expense incurred when rail cars are unduly detained
beyond a specified period of time (i.e., ``free time'') for loading
and unloading. See Pa. R.R. v. Kittaning Iron & Steel Mfg. Co., 253
U.S. 319, 323 (1920) (``The purpose of demurrage charges is to
promote car efficiency by penalizing undue detention of cars.''); 49
CFR 1333.1; see also 49 CFR part 1201, category 106.
 Under 49 CFR 1333.3, a railroad's ability to charge demurrage
pursuant to its tariff is conditional on its having given, prior to
rail car placement, actual notice of the demurrage tariff to the
person receiving rail cars for loading and unloading. Once a shipper
[[Page 26922]]
receives a notice as to a particular tariff, additional notices are
required only when the tariff changes materially. The parties rely
on the information in the demurrage tariffs to avoid demurrage
disputes, and the Board uses the tariffs to adjudicate demurrage
disputes that come before it.
 As described in detail in this SNPRM, the NPRM, and the final
rule relating to direct billing issued simultaneously with this
SNPRM, the Board is amending the rule that applies to this
collection of demurrage disclosure requirements to require Class I
carriers to include certain minimum information on or with demurrage
invoices, take appropriate action to ensure that demurrage charges
are accurate and warranted, and directly bill the shipper for
demurrage when the shipper and warehouseman agree to that
arrangement and so notify the rail carrier. The collection and use
of this information by the Board enable the Board to meet its
statutory duties.
[FR Doc. 2020-09684 Filed 5-5-20; 8:45 am]
 BILLING CODE 4915-01-P