NGFA Replies to Railroads’ Petition to Stay STB’s Arbitration Program

This article is taken from the National Grain and Feed Association's Feb. 10 newsletter.

NGFA on Feb. 9 submitted its opposition to rail carriers’ renewed petition to stay an opt-in requirement of the Small Rate Case Arbitration Program at the Surface Transportation Board (STB).

The new arbitration program, published by STB in December 2022, is intended to increase rail shippers’ access to rail transportation rate challenges.

Class I carriers must choose whether to opt into the arbitration program by Feb. 23 unless the STB grants a new petition for stay.

Shortly after the STB issued its final rule on the program, four Class I carriers (CSX, Norfolk Southern, Union Pacific, and Canadian National) filed a petition for stay, requesting that the STB postpone its deadline until any judicial appeals or petitions of the rule are resolved.

STB denied this petition on Jan. 24, but the rail carriers have renewed their request.

In its Feb. 3 comments, NGFA said the renewed petition should be denied. The Association reiterated that rail shippers support the implementation of a Small Case Arbitration Program as outlined in the final rules.

The railroads “have not met the strict criteria for obtaining a stay, including the requirement that a stay not result in harm to shippers and the public,” NGFA stated.

“Granting the requested stay will do just that, by depriving NGFA’s members and other shippers the benefits of the Arbitration Program for what could be multiple years as the appeals are briefed and decided.”

The rail carriers again allege that irreparable harm will occur if they choose to not opt-in to the program because the program will then fail to go into effect, NGFA noted.

“However, the Board has already disposed of such arguments, correctly stating that ‘the fact that the opt-in deadline occurs before the completion of any appeals or reconsideration processes should not reasonably be expected to affect the carriers’ initial opt-in decision to the program as it exists.’”

NGFA also said the Board rightfully pointed out in its original decision that granting a stay will be harmful to other parties and the public “because the Board would be guaranteeing that the arbitration program’s benefits would not come to pass for the pendency of the appeals…This delay would most likely be measured in years, not months.”

View the STB docket here and NGFA’s full comments here.