[Federal Register Volume 62, Number 88 (Wednesday, May 7, 1997)]
[Proposed Rules]
[Pages 24896-24897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11877]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Chapter X

[STB Ex Parte No. 564]


Service Obligations Over Excepted Track

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board seeks comments from all interested persons on the 
circumstances under which it should require a railroad to operate over 
excepted track that does not meet Federal Railroad Administration (FRA)

[[Page 24897]]

class 1 track safety standards, and that the operating railroad deems 
to be unsafe.

DATES: Notices of intent to participate are due by May 27, 1997. 
Shortly thereafter, a list of participants will be issued. Comments are 
due by July 7, 1997. Replies are due by August 5, 1997.

ADDRESSES: Send an original and 10 copies of notices of intent to 
participate and pleadings referring to STB Ex Parte No. 564: Office of 
the Secretary, Case Control Unit, Surface Transportation Board, 1925 K 
Street, N.W., Washington, DC 20423.
    Also, send one copy to each party on the list of participants.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 565-1600. 
[TDD for the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: In a decision in GS Roofing Products 
Company, Inc., Beazer West, Inc., D/B/A Gifford Hill & Company, Bean 
Lumber Company and Curt Bean Lumber Company v. Arkansas Midland 
Railroad and Pinsly Railroad Company, Inc., Docket No. 41230 (STB 
served Mar. 11, 1997) (GS Roofing), 1 we reviewed a fact-
specific complaint concerning whether a railroad's embargo of certain 
``excepted'' track that had been operated at less than FRA ``class 1'' 
operating standards was unlawful so as to support a request for damages 
for failure to provide service during the period of the embargo. We 
found that it was not unlawful.
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    \1\ Petition for review pending, GS Roofing Products Company, 
Inc., et al. v. Surface Transportation Board, No. 97-107 (8th Cir.).
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    In our GS Roofing decision, we addressed, in general terms, the 
relationship between the common carrier obligation and a railroad's 
determination to impose an embargo. We pointed out (at 2 n.5) that a 
carrier's common carrier obligation is not extinguished by its 
imposition of an embargo. We also noted (at 8) that, ``under its common 
carrier obligation, a railroad's primary responsibility is to restore 
safe and adequate service within a reasonable period of time over any 
line as to which it has not applied for abandonment authority.'' 
Nevertheless, in the GS Roofing case, we concluded that the carrier's 
initial determination to embargo the track was reasonable, as the track 
had been damaged by flooding and the carrier thus had reasonably 
concluded that the track was unsafe. We also found that the carrier's 
continuation of the embargo for approximately two months, before it 
determined whether to repair the track or instead to seek to abandon or 
sell it, was not unreasonable.
    We recognize that, in some circumstances, excepted track may be 
safe, if it is operated at appropriate speeds and under appropriate 
operating conditions. For that reason, and because an embargo does not 
extinguish the common carrier obligation, the Interstate Commerce 
Commission (ICC), our predecessor with respect to railroad regulation, 
found a carrier liable for not repairing excepted track and resuming 
operations over it in Louisiana Railcar, Inc. v. Missouri Pacific R.R., 
5 I.C.C.2d 542, 546 (1989), a case that we cited in our GS Roofing 
decision.
    Nonetheless, a railroad may be of the view that certain excepted 
track--even track that has not been expressly condemned by the FRA--is 
not safe. In light of the implications of the Government forcing a 
carrier to operate over track that the carrier may reasonably believe 
is unsafe, the ICC historically used class 1 standards as the minimum 
level of safety compliance at which a railroad would be required to 
operate.
    Because our GS Roofing decision was fact-specific, we did not 
address, beyond the general principles noted earlier, the circumstances 
under which a railroad's refusal to provide service over excepted track 
would be deemed to be unreasonable. Nevertheless, our decision has 
apparently generated some confusion, and indeed has been characterized 
as having held that railroads can, as a matter of course, avoid their 
common carrier obligation simply by declaring their track to be 
excepted track.
    Those questions--although they go well beyond any matter addressed 
in the fact-specific GS Roofing decision itself, are significant, and 
of broad interest. Accordingly, we are initiating sua sponte this 
proceeding to address the circumstances under which we should require a 
railroad to provide service to shippers over track that does not meet 
FRA class 1 track safety standards, and that the carrier has concluded 
is not safe. We seek the views not only of the operating railroads and 
their shippers, but also of rail labor, whose members operate over the 
track at issue; the FRA, which is responsible for administering the 
railroad track safety program; state and local governments that are 
involved with rail transportation planning and programs; and any other 
interested persons. Depending on the nature of the submissions 
presented, we will determine at a future date whether to propose formal 
rules, issue a policy statement, or continue to proceed on a case-by-
case basis, as we and the ICC have done in the past.

    Decided: April 28, 1997.
    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-11877 Filed 5-6-97; 8:45 am]
BILLING CODE 4915-00-P