[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Proposed Rules]
[Pages 9413-9415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5515]



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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Chapter X

[STB Ex Parte No. 528]


Disclosure, Publication, and Notice of Change of Rates and Other 
Service Terms for Rail Common Carriage

AGENCY: Surface Transportation Board, DOT.

ACTION: Advance Notice Of Proposed Rulemaking.

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SUMMARY: The ICC Termination Act of 1995 (ICCTA) eliminated the tariff 
and tariff filing requirements formerly applicable to rail carriers, 
but imposed in lieu thereof certain obligations to disclose common 
carriage rates and service terms as well as a requirement 

[[Page 9414]]
for advance notice of an increase in such rates or change in service 
terms. The ICCTA requires the Board to promulgate regulations to 
administer these new obligations by June 29, 1996. The Board seeks 
public comment on appropriate regulations for that purpose, and 
encourages the affected interest groups to discuss and seek mutually 
agreeable regulations to propose.

DATES: Comments are due on April 8, 1996.

ADDRESSES: Send comments (an original and 10 copies) referring to STB 
Ex Parte No. 528 to: Surface Transportation Board, Office of the 
Secretary, Case Control Branch, 1201 Constitution Avenue NW., 
Washington, DC 20423.

FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5610. [TDD for 
the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: The ICC Termination Act of 1995, Pub. L. No. 
104-88, 109 Stat. 803 (ICCTA), enacted on December 29, 1995, abolished 
the Interstate Commerce Commission (ICC) and transferred responsibility 
for the economic regulation of rail transportation to a new Surface 
Transportation Board (the Board). See ICCTA Section 101 (abolition of 
the ICC). See also new 49 U.S.C. 701(a) (establishment of the Board), 
as enacted by ICCTA Section 201(a). The transfer took effect on January 
1, 1996. See ICCTA Section 2 (effective date).1

    \1\ The ICCTA also made several changes to the rail regulatory 
authority that had been administered by the ICC. In this notice, 
when referring to the provisions of the United States Code affected 
by ICCTA we use the word former to refer to the law in effect prior 
to January 1, 1996, and the word new to refer to the law in effect 
on and after January 1, 1996.
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    The substantive provisions of the new law differ in several 
important respects from the former law. As pertinent here, the former 
law required that rail carriers file with the ICC tariffs containing 
the specific rates and charges (or the basis for calculating them) for 
their common carriage transportation services. Rail carriers had to 
adhere to the rates and terms contained in their tariffs. See former 49 
U.S.C. 10761 and 10762. See also 49 CFR part 1314 (1995).
    The ICCTA eliminated the rail tariff requirements, effective 
January 1, 1996. Accordingly, no new rail carrier tariffs are to be 
filed with the Board, and the rail carrier tariffs that were previously 
filed with the ICC are no longer effective tariffs as of January 1, 
1996. The ICC regulations at 49 CFR part 1314, governing rail carrier 
tariffs, are likewise not effective as of that date and are being 
formally repealed in another proceeding recently initiated by the 
Board.
    Nevertheless, new 49 U.S.C. 11101(b) and (d) require disclosure of 
rail common carriage rates and service terms. New 49 U.S.C. 11101(c) 
further requires that rail carriers, when providing common carriage, 
not increase their rates or change their service terms without advance 
notice. Finally, new 49 U.S.C. 11101(e) requires rail carriers to 
adhere to the rates and service terms published or otherwise made 
available under new 49 U.S.C. 11101(b)-(d).2

    \2\ A central feature of both the old and new law is the 
requirement that a rail carrier adhere to its established rates. 
Therefore, as a transition matter, a question that arises is whether 
a rail carrier must continue to adhere to its established rates and 
service terms--those that were in effect (in tariffs on file with 
the ICC) on December 31, 1995--unless and until changed in a manner 
consistent with the requirements of new section 11101. Otherwise, it 
could be argued that there could be a break in the continuity of 
rates that Congress did not intend.
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    New 49 U.S.C. 11101(f) directs the Board to establish rules to 
implement the requirements of new 49 U.S.C. 11101. In accordance with 
this directive, we intend to promulgate new regulations to implement 
the requirements of new 49 U.S.C. 11101(b), (c), and (d). We do not 
believe that implementing rules are required for new 49 U.S.C. 
11101(a), which simply reenacts the longstanding common carrier 
obligation that the carrier provide transportation or service on 
reasonable request. We believe that this obligation, which has been 
well developed through case law, is best addressed on a case-by-case 
basis.
    Similarly, our preliminary view is that implementing rules are not 
required for new 49 U.S.C. 11101(e), which requires a rail carrier to 
provide transportation or service in accordance with the rates and 
service terms, and any changes thereto, as published or otherwise made 
available under new 49 U.S.C. 11101(b), (c), or (d). This requirement 
appears to be clear on its face.
    The regulations implementing new section 11101 would appear to 
apply to any transportation or service provided by a rail carrier 
subject to our jurisdiction under new 49 U.S.C. 10501, with two 
exceptions. They would not apply, it would seem, to transportation or 
service provided by a rail carrier (1) under a contract pursuant to 
former 49 U.S.C. 10713 or new 49 U.S.C. 10709, or (2) covered by an 
exemption issued under former 49 U.S.C. 10505 or new 49 U.S.C. 10502, 
to the extent that such exemption remains in effect and applies to rate 
notice and disclosure requirements.
    The new regulations would first need to address the requirement of 
new 49 U.S.C. 11101(b) that a rail carrier promptly provide to any 
person, on request, its rates and other service terms. It would appear 
that this requirement applies both to the disclosure of an existing 
rate (and related service terms) and to the establishment of a new rate 
(and related service terms) where none exists.
    In the situation where the carrier has existing rates covered by 
the rate information request, the provisions of 49 U.S.C. 11101(b) and 
(f) require the carrier ``immediate[ly]'' to disclose its ``rates and 
service terms, including classifications, rules, and practices'' to any 
person requesting such information. We seek suggestions for a rule that 
would implement these provisions in a way that would provide the rate 
requester with complete information about all relevant terms and 
conditions. We also seek input on whether we should attempt to define 
the word immediately, or instead should simply establish general 
guidelines to be applied on a case-by-case basis, setting up broad 
parameters governing disclosure.
    There may be instances in which a shipper or prospective shipper 
requests the carrier to establish a rate for a type of traffic for 
which no existing rate is in place. Again, the provisions of 49 U.S.C. 
11101(b) appear to require that the rail carrier provide a rate, as 
well as any related charges and service terms, promptly. We seek input 
on whether we ought to define the word promptly, or instead should 
simply adopt broadly applicable guidelines.
    The new regulations also need to address the requirement of new 49 
U.S.C. 11101(c) that a rail carrier may not increase a common carriage 
rate or change a common carriage service term without first giving 20 
days' notice to any person who, within the previous 12 months, (1) has 
requested that rate or term under new subsection (b), or (2) has made 
arrangements with the carrier for a shipment that would be subject to 
the increased rate or changed term. It seems to us that the advance 
notice requirement would apply to known users of the transportation or 
service to which the increase or change is applicable (i.e., a person 
who has made a shipment within the past year or has already made 
arrangements for a future shipment) and also to known prospective users 
of such transportation or service (i.e., a person who has requested 
that rate to be established). Our preliminary view is that it would not 
be necessary or appropriate to require a carrier to keep a record of 
and notify all persons who have requested rate information but are not 
users of the 

[[Page 9415]]
affected transportation service. We request comment on what guidance, 
if any, should be given for determining which members of the shipping 
public are covered by the 20-day notice period.
    We note that the notice requirement does not apply to a rate 
decrease, which a carrier may apply without notice. Similarly, it would 
not seem that the notice requirement should apply to, and hence delay, 
a change in service terms that is clearly beneficial to shippers. Our 
initial view is that it is not necessary to establish rules addressing 
how to determine whether a service change is clearly beneficial to 
shippers. Commenters may wish to address this issue.
    The new regulations also need to address the publication 
requirement of new 49 U.S.C. 11101(d), which requires railroads to 
``publish, make available, and retain for public inspection [their] 
common carrier rates, schedule of rates, and other service terms,'' and 
any changes thereto, for the transportation of agricultural products 
(including grain, as defined in 7 U.S.C. 75, and all products thereof) 
and fertilizer. It should be noted that the publication requirement for 
these commodities is in addition to the disclosure and notification 
requirements of new subsections (b) and (c). This additional 
requirement reflects Congress' concern that broad dissemination of 
market information on a timely basis is particularly critical to the 
agricultural sector of the economy, given the seasonal nature of its 
transportation needs and the short time frame within which such needs 
must be met.
    It would seem that the required publication could be provided by 
the rail carrier itself or by an agent (e.g., a publishing service or 
another rail carrier) acting at the rail carrier's direction. It would 
also seem that these publications would need to be made available to 
all interested persons, but that the rail carrier or its agent should 
be able to impose reasonable charges for such publications.3 We 
seek comment on how best to implement this provision. Again, we request 
input on how to interpret the requirement that publication of any 
proposed or actual changes be made promptly.

    \3\  Of course, to accommodate particular segments of the 
agricultural sector, it would seem that carriers could, at their 
discretion, continue to issue more narrowly focused publications as 
well.
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    Finally, the new regulations should provide for the required 
information to be supplied either in writing or in electronic form. It 
would appear that the form chosen would depend upon the technical 
capacities of the carrier to transmit, and of the requester to receive, 
the information.

Request for Comments

    We invite all interested persons to comment and to offer 
suggestions for the new regulations. We encourage affected interest 
groups to discuss these new requirements with each other and to seek a 
mutually agreeable set of regulations that would meet the needs of all 
affected interests--both shipper and carrier, and both large and small.
    Comments (an original and 10 copies) must be in writing, and are 
due on April 8, 1996.
    We encourage any commenter that has the necessary technical 
wherewithal to submit its comments as computer data on a 3.5-inch 
floppy diskette formatted for WordPerfect 5.1, or formatted so that it 
can be readily converted into WordPerfect 5.1. Any such diskette 
submission (one diskette will be sufficient) should be in addition to 
the written submission (an original and 10 copies).

Small Entities

    Because this is not a notice of proposed rulemaking within the 
meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), we 
need not conduct at this point an examination of impacts on small 
entities. We will certainly welcome, of course, any comments respecting 
whether regulations that commenters may suggest would have significant 
economic effects on any substantial number of small entities.

Environment

    The issuance of this advance notice of proposed rulemaking will not 
significantly affect either the quality of the human environment or the 
conservation of energy resources. Furthermore, we would not expect that 
regulations suggested for implementing new 49 U.S.C. 11101 would 
significantly affect either the quality of the human environment or the 
conservation of energy resources. We certainly welcome, of course, any 
comments respecting whether suggested revisions would have any such 
effects.

    Authority: 49 U.S.C. 721(a) and 11101.

    Decided: February 29, 1996.

    By the Board, Chairman Morgan, Vice Chairman Simmons, and 
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-5515 Filed 3-7-96; 8:45 am]
BILLING CODE 4915-00-P