[Federal Register Volume 63, Number 202 (Tuesday, October 20, 1998)]
[Proposed Rules]
[Pages 55996-55997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28111]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1146
[STB Ex Parte No. 628]
Expedited Relief for Service Inadequacies
AGENCY: Surface Transportation Board, DOT.
ACTION: Supplemental Notice of Proposed Rulemaking.
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SUMMARY: In May 1998, the Board instituted a proceeding to solicit
comments on proposed rules that would establish expedited procedures
for shippers to obtain alternative rail service from another carrier
when the incumbent carrier cannot properly serve shippers.1
On September 25, 1998, the American Short Line and Regional Railroad
Association (ASLRRA) asked for similar expedited procedures to be
established for Class II and Class III railroads to obtain temporary
access to an additional carrier under similar circumstances. By this
notice, the Board sets dates for interested persons to respond to the
ASLRRA request.
\1\ Expedited Relief for Service Inadequacies, STB Ex Parte No.
628 (STB served May 12, 1998), 63 FR 27253 (May 18, 1998) (May
Notice).
DATES: Supplemental comments on the ASLRRA request are due October 30,
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1998. Supplemental replies to such comments are due November 6, 1998.
ADDRESSES: An original plus 12 copies of all supplemental comments and
replies, referring to STB Ex Parte No. 628, must be sent to the Office
of the Secretary Case Control Unit, ATTN: STB Ex Parte No. 628, Surface
Transportation Board, 1925 K Street, NW, Washington, DC 20423-0001. In
addition, copies should be served upon all parties included in the
service list issued by the Board in its notices served June 9 and 16,
1998, which are available on the Board's website (www.stb.dot.gov).
Copies of the supplemental comments will be available from the
Board's contractor, DC News and Data, Inc., located in Room 210 in the
Board's building. DC News can be reached at (202) 289-4357. The
comments will also be available for viewing and self copying in the
Board's Microfilm Unit, Room 755.
In addition to the original and 12 copies of all paper documents
filed with the Board, the parties shall submit their pleadings,
including any graphics, on a 3.5-inch diskette formatted for
WordPerfect 7.0 (or in a format readily convertible into WordPerfect
7.0). All textual material, including cover letters, certificates of
service, appendices and exhibits, shall be included in a single file on
the diskette. Each diskette shall be clearly labeled with the filer's
name, the docket number of this proceeding (STB Ex Parte No. 628), and
the name of the electronic format used on the diskette for files other
than those formatted in WordPerfect 7.0. All pleadings submitted on
diskettes will be posted on the Board's website (www.stb.dot.gov). The
electronic submission requirements set forth in this notice supersede,
for the purposes of this proceeding, the otherwise applicable
electronic submission requirements set forth in the Board's
regulations. See 49 CFR 1104.3(a), as amended in Expedited Procedures
for Processing Rail Rate Reasonableness, Exemption and Revocation
Proceedings, STB EX Parte No. 527, 61 FR 52710, 711 (Oct. 8, 1996), 61
FR 58490, 58491 (Nov. 15, 1996).2
\2\ A copy of each diskette submitted to the Board should be
provided to any other party upon request.
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FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 565-1600.
[TDD for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: As explained more fully in May Notice, the
proposed rules are designed to enable the Board to remedy railroad
service failures quickly and effectively.3 The proposed
rules would provide expedite
[[Page 55997]]
procedures for parties to seek alternative rail service under 49 U.S.C.
11102, 10705 or 11123 when, over an identified time period, there has
been a substantial, measurable deterioration in the rail service
provided by an incumbent carrier. We did not list particular factors to
be used in making that assessment, or propose a specific test period,
but rather proposed a flexible standard of relief to permit the Board
to address varying circumstances. However, we cautioned that the
proposed rules are not meant to redress minor service disruptions, but
rather are directed only at substantial service problems that cannot
readily be resolved by the incumbent railroad. Accordingly, we proposed
to require petitioning shippers to: (1) first discuss and assess with
their incumbent carrier whether adequate service can be restored within
a reasonable time and, if not, to explain why not; and (2) obtain from
another railroad the necessary commitment--should it be afforded
access--to meet the shipper's service needs, and describe the carrier's
plan to do so safely and without degrading service to its existing
customers and without unreasonably interfering with the incumbent's
overall ability to provide service. Finally, the proposed rules would
provide that, where relief has been granted and the incumbent carrier
can demonstrate that it has restored, or is prepared to restore,
adequate service, it may file a petition to terminate that relief
(although the proposed rules would discourage carriers from filing such
a petition to terminate less than 90 days after relief was granted,
absent special circumstances).
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\3\ The proposed rules are designed only to respond to service
problems, and not to provide permanent responses to perceived
competitive issues. May Notice, at 6 n.6.
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ASLRRA Request
In its request, which it served on all parties to the Ex Parte No.
628 proceeding,4 ASLRRA asserts that small (Class II and
Class III) railroads 5 and their shippers can be seriously
affected by service disruptions of a connecting railroad and that they
need expedited procedures comparable to the proposed Ex Parte No. 628
procedures for obtaining temporary access to a second carrier. ASLRRA
mentions three specific types of access:6
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\4\ ASLRRA also served its request on all parties in Ex Parte
No. 575, the more general informational proceeding that spawned our
proposal in Ex Parte No. 628. See Review of Rail Access and
Competition Issues, STB Ex Parte No. 575 (STB served April 17, 1998)
(Review), at 6; May Notice, at 2-3.
\5\ Railroads are classified by the amount of their annual
operating revenues, measured in 1991 dollars. A Class III railroad's
revenues do not exceed $20 million; a Class II railroad has revenues
of more than $20 million, but less than $250 million; and a Class I
railroad has revenues of at least $250 million. 49 CFR 1201, General
Instruction 1-1.
\6\ ASLRRA Request, at 7-8.
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``(1) Relief from the terms of an existing [so-called paper]
barrier [7] or other impediment to access, to permit direct
access to the additional carrier;
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\7\ ``Paper barriers'' refer to contractual restrictions that
preclude some small carriers from interchanging traffic with
carriers other than their primary connecting carrier. See Review, at
8.
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``(2) Permitting the small railroad access over [the] incumbent
carrier for a reasonable distance in order to reach the additional
carrier; and
``(3) Permitting the additional carrier access over the incumbent
to reach the small railroad.''
ASLRRA further suggests that, for small railroads, severe service
disruptions of 30 days should qualify for relief,8 and that
the access granted should last for 270 days (the maximum time allowed
under current law for emergency orders under 49 U.S.C. 11123). Finally,
ASLRRA asserts that a railroad-petitioner should not need an advance
commitment from the additional carrier, in view of the mandatory
interchange requirements applicable to all railroads.
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\8\ ASLRRA would specifically include serious, continuing car
supply problems as grounds for relief.
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AAR Reply
AAR asserts that the ASLRRA proposal can and should be considered
in the ongoing Ex Parte No. 628 proceeding,9 as it involves
the same subject--expedited relief for service
inadequacies.10 Moreover, AAR does not view the rules
proposed in May as limited to shipper petitions for relief; rather, AAR
takes the position that the expedited procedures, as proposed, would be
available to railroads (of any size) and shippers alike.11
Nevertheless, AAR supports clarifying the Ex Parte No. 628 rules to
specify that railroads, like shippers, could petition for relief, and
that the relief granted could include providing for a connection
between the petitioning railroad and a second railroad.
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\9\ The AAR reply, like the ASLRRA request, was served on all
parties of record in both the Ex Parte No. 575 and Ex Parte No. 628
proceedings.
\10\ Edison Electric Institute (EEI), in a letter dated October
5, 1998, asks that the record in Ex Parte No. 628 be considered in
addressing the ASLRRA request, and that the Board provide for
opening and reply comments in the matter. Our approach here is
consistent with both of EEI's requests.
\11\ Although the proposed rules do not specifically limit
petitioners to shippers, the explanatory discussion in the May
Notice focused on shipper-petitioners.
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Although AAR agrees in principle with the ASLRRA proposal, it does
not concur in all aspects of that proposal. Rather, it argues against
compelling an unwilling second railroad to participate in an emergency
service arrangement,12 establishing preset time frames as
suggested by ASLRRA,13 and using what it describes as
``routine car supply issues'' as a basis for emergency
relief.14
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\12\ AAR asserts that ``the principal if not only reason that a
second railroad would decline to handle additional traffic via a new
connection would be operating considerations.'' AAR Reply at 4 n.3.
Under the proposed rules, operating considerations are a significant
factor in determining whether to grant relief. See Proposed Rule
1146.1(b)(1)(C) (requiring the petition to address whether the
alternative service ``would meet the * * * service needs'' and ``how
that carrier would provide the service safely without degrading
service to its existing customers or unreasonably interfering with
the incumbent's overall ability to provide service.'').
\13\ AAR Reply at 5 n.4, 7.
\14\ AAR argues that ``application of the rules to car supply
issues between small and large railroads would be particularly
inappropriate in light of the fact that the [recent] AAR-ASLRRA Rail
Industry Agreement [a far-reaching agreement encompassing a variety
of issues, negotiated in response to the Board's Review decision]
provides a structured mechanism for working together to improve the
satisfaction of customers' car supply needs.'' AAR Reply at 6 n.6.
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Board Conclusion
We conclude that the ASLRRA proposal should be considered in the Ex
Parte No. 628 proceeding.15 Accordingly, to ensure that all
issues relating to that proposal are fully aired, and that the
inclusion of the ASLRRA proposal does not unduly delay this proceeding,
we are establishing an abbreviated schedule for the submission of
comments on the proposal. Comments on the ASLRRA request will be due
October 30, 1998, and replies to such comments are due November 6,
1998.
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\15\ The Board otherwise takes no position at this time on
either the ASLRRA proposal or the AAR arguments relating to it.
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This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1146
Administrative practice and procedure, Railroads.
Decided: October 15, 1998.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 98-28111 Filed 10-19-98; 8:45 am]
BILLING CODE 4915-00-P