[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Proposed Rules]
[Pages 32068-32070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15266]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1157
[STB Ex Parte No. 563]
Commuter Rail Service Continuation Subsidies and Discontinuance
Notices
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (Board) is proposing to
remove from the Code of Federal Regulations regulations concerning
subsidies for the continuation of commuter rail service and notices of
the discontinuance of commuter rail service.
DATES: Comments are due on July 14, 1997.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (ICCTA),
abolished the Interstate Commerce Commission (ICC) and established the
Board. Section 204(a) of the ICCTA provides that ``[t]he Board shall
promptly rescind all regulations established by the [ICC] that are
based on provisions of law repealed and not substantively reenacted by
this Act.''
It appears that some of the regulations at 49 CFR part 1157 are
based on repealed statutes. On the other hand, statutes outside the
ICCTA refer to and hence may require the retention in substance of part
1157. We are instituting this proceeding to determine whether these
regulations may be eliminated, or whether they have continuing validity
and must be retained.
Part 1157 deals with the determination of commuter rail
continuation subsidies for the Consolidated Rail Corporation (Conrail)
(subpart A) and notices of the discontinuance of commuter rail service
by Amtrak Commuter Services Corporation (Amtrak Commuter) (subpart B).
The subpart A regulations are based in part on former 49 U.S.C. 10362,
which, together with former section 10361, pertained to the Rail
Services Planning Office (RSPO) of the former ICC.1 Both
section 10361 and section 10362 were repealed by the ICCTA.2
Moreover, the ICCTA removed the requirement in 45 U.S.C. 744(e) that
RSPO issue regulations for rail passenger subsidies for Conrail. See
section 327(3) of the ICCTA. Finally, under 49 U.S.C. 10501(c)(2) of
the ICCTA, with certain exceptions not relevant here,3 ``the
Board does not have jurisdiction under this part over mass
transportation provided by a local governmental authority.''
4 As described infra, however, the subpart A regulations are
referred to in an Amtrak Commuter statute that is still in effect.
Accordingly, we seek comment on whether subpart A can be eliminated.
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\1\ These and other statutes will be discussed in greater
detail, infra.
\2\ Besides former 49 U.S.C. 10362, the regulations in part
1157, subpart A give for their statutory authority 49 U.S.C. 10321
and 5 U.S.C. 559. Section 10321, dealing with the ICC's general
authority, has been carried over to 49 U.S.C. 721, while 5 U.S.C.
559 remains part of the Administrative Procedure Act.
\3\ The exceptions, listed in section 10501(c)(3)(A), make
safety, employee representation for collective bargaining, and other
employee-related matters subject to applicable federal laws. Also,
under section 10501(c)(3)(B), the Board has jurisdiction over
transportation by local transportation authorities relating to use
of terminal facilities (section 11102) and switch connections and
tracks (section 11103).
\4\ Under former 49 U.S.C. 10504(b)(2), the ICC did not have
jurisdiction over mass transportation provided by a local
governmental authority if the fares, or the authority to apply to
the Commission for changes in those fares, were subject to the
approval of the Governor of the state in which the transportation
was provided. The ICCTA broadened this exemption, and the Board
currently does not have jurisdiction whether or not the Governor can
approve a fare. ``This provision * * * changes the statement of
agency jurisdiction to reflect curtailment of regulatory
jurisdiction in areas such as passenger transportation. * * *
(A)lthough regulation of passenger transportation is generally
eliminated, public transportation authorities * * * may invoke the
terminal area and reciprocal switching access remedies of section
11102 and 11103.'' See H. R. Conf. Rep. No. 422, 104th Cong., 1st
Sess. 167 (1995). See also, Commuter Rail Division of the Regional
Transportation Authority of Northeast Illinois, D/B/A Metra--
Exemption-- Tariff Filing Requirements, Docket No. 41506 (STB,
served Mar. 29, 1996).
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The regulations in part 1157, subpart B are based on 49 U.S.C.
24505(e)(2).5 As noted, while the ICCTA removed references
in 45 U.S.C. 744(e) to regulations issued by RSPO, section 24505(e)(2)
still refers to RSPO prescribing regulations for Amtrak Commuter
discontinuance notices. As indicated, however, under section
10501(c)(2) the Board does not have jurisdiction over local
governmental authorities providing mass transportation. Additionally,
neither the Board (nor the ICC before it) has jurisdiction to regulate
any of Amtrak's service. We also seek comment on whether the subpart B
regulations can be eliminated.
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\5\ The statutory authority given for the regulations in part
1157, subpart B is ``49 U.S.C. 504(d)(2)'' while the text of the
regulations cites ``45 U.S.C. 504(d)(2).'' Neither of these
references is currently correct. Section 1137 of the Northeast Rail
Service Act of 1981, discussed infra, contains a section 504(d)(2)
which was originally codified at 45 U.S.C. 584(d)(2). Section 584
was repealed by Pub. L. No. 103-272, section 7(b), July 5, 1994, 108
Stat. 745, and recodified at 49 U.S.C. 24505(e)(2) as part of a
general restructuring of the United States Code ``(t)o restate the
laws related to transportation in one comprehensive title * * *.''
H.R. Rep. No. 180, 103d Cong., 2d Sess. 3 (1994), reprinted in 1994
U.S.C.C.A.N. 818, 820.
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Background
To assist parties in commenting on whether part 1157 should be
retained, we will briefly describe the rather complex statutory setting
for the regulations.
The Rail Passenger Service Act of 1970, Pub. L. No. 91-518, 84
Stat. 1327 (1970) (Amtrak Act), created the National Railroad Passenger
Corporation, known as Amtrak, a for-profit corporation. See 49 U.S.C.
24301 et seq.6 Railroads that entered into contracts with
Amtrak were relieved of their duties to provide intercity rail
passenger service.
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\6\ The Amtrak Act was originally codified at 45 U.S.C. 501-
566.
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The Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236,
87 Stat. 985, 45 U.S.C. 701 et seq. (3R Act) created Conrail as a for-
profit corporation to reorganize the bankrupt rail services in the
Northeast and Midwest. Conrail was required by the 3R Act to continue
providing rail service if states or local transportation authorities
made payments to subsidize unprofitable operations. Section 304. The 3R
Act also created RSPO, which was authorized to issue standards for
defining accounting terms used in section 304. Section
205(d).7
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\7\ Under the eventual statutory codification, RSPO was
established as ``an office in the Interstate Commerce Commission.''
Former 49 U.S.C. 10361. In resolving the issue of whether final
orders or regulations of RSPO were to be considered orders or
regulations of the ICC, the court held that ``(a)lthough Congress
gave to the RSPO final administrative responsibility for certain
determinations, we conclude that the RSPO is sufficiently part of
the ICC so that its orders are to be considered orders of the ICC
for purposes of the Hobbs Act.'' Southeastern Pennsylvania Transp.
Auth. v. I.C.C., 644 F.2d 238, 240, n.3 (3rd Cir. 1981).
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Subsequently, Congress enacted the Railroad Revitalization and
Regulatory Reform Act of 1976 (4R Act), which amended portions of the
3R Act and also added new sections. The 4R Act established, inter alia,
a program of Federal financial assistance for the continuation of
certain rail commuter passenger services in the Midwest and
[[Page 32069]]
Northeast regions. Section 304(e) of the 4R Act (now codified at 45
U.S.C. 744(e)) amended the 3R Act by explicitly adding a section
pertaining to rail passenger service. Under this provision, Conrail was
to continue providing rail passenger service if a state or local
transportation authority offered a subsidy to pay for the unprofitable
service.
Of significance to this proceeding, section 309 of the 4R Act
amended section 205(d) of the 3R Act (49 U.S.C. 10362) to require RSPO
to develop standards for the computation of subsidies for the
continuation of these commuter services.8 RSPO issued the
regulations on August 3, 1976, 41 FR 32546.9 These standards
were originally codified at 49 CFR part 1127 and are now found at 49
CFR part 1157, subpart A (subsidy standards).
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\8\ The RSPO subsidy regulations are also referenced in 45
U.S.C. 744(e).
\9\ RSPO originally published a notice of proposed rulemaking
(NPR) on February 20, 1976, in Standards for the Computation of
Commuter Rail Passenger Service Subsidies, Ex Parte No. 293 (Sub-No.
8). On May 16, 1976, it published a further NPR (41 FR 20104), and
on June 30, 1976, it published a second NPR (41 FR 26936).
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Next, Congress enacted the Northeast Rail Service Act of 1981, Pub.
L. 97-35, 95 Stat. 643 (NERSA).10 In the context of part
1157, NERSA made three important changes.
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\10\ ``NERSA * * * was designed essentially to extricate
Conrail from its fiscally draining commitment to commuter services
so that it could concentrate on freight services, while ensuring the
orderly transfer of commuter services to new, viable providers.''
Conrail v. Metropolitan Transit Authority, 1996 U.S. Dist. Lexis
3519, at *4 (S.D.N.Y. 1996).
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First, under section 1136 of NERSA, codified at 45 U.S.C. 744a,
Conrail was relieved on January 1, 1983, of any legal obligation to
provide commuter service. Despite this change, however, 45 U.S.C. 744
was retained. Section 744(e), as noted, required Conrail to provide
rail passenger service if a subsidy is paid under regulations issued by
RSPO.
Second, section 1137 of NERSA amended the Amtrak Act and chartered
Amtrak Commuter. Section 1137 was originally codified at 45 U.S.C. 581-
91 and is now codified at 49 U.S.C. 24501-06. Under section
24505(a)(1), Amtrak Commuter is required to provide the commuter rail
passenger service that Conrail was obligated to provide under the 3R
and 4R Acts. Moreover, under section 24505(a)(2), Amtrak Commuter may
provide passenger service if a commuter authority pays the avoidable
costs plus a reasonable return on value less the revenues from the
transportation. RSPO was to issue the regulations for such
payments.11
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\11\ Section 24505(b)(1) provides that ``(a) commuter authority
making an offer under subsection (a)(2) of this section shall * * *
(B) make the offer according to regulations the Rail Services
Planning Office prescribes under section 10362(b) (5)(A) and (6) of
this title.''
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Finally, also under section 1137 and now codified at 49 U.S.C.
24505(e), Amtrak Commuter may discontinue rail passenger service on 60
days' notice if a commuter authority does not offer a subsidy or a
subsidy payment is not paid when due. Under section 24505(e)(2) RSPO
was directed to prescribe regulations for ``the necessary contents of
the notice required under this subsection.''
In response to NERSA, RSPO issued an NPR in Ex Parte No. 293 (Sub-
No. 8), that was published in the Federal Register on September 9, 1982
(47 FR 39700). RSPO proposed to divide the regulations at 49 CFR part
1127 (which then contained the subsidy standards) into two sections:
subpart A would contain the existing subsidy standards while subpart B
would comprise the new discontinuance notice procedures.
While RSPO proposed new regulations under subpart B for
discontinuance notices, it did not propose any changes to the subsidy
standards. Instead, the NPR implicitly proposed to adopt the subsidy
standards for use in Amtrak Commuter cases: ``After January 1, 1983,
[Amtrak Commuter] is required to take over the commuter operations
currently provided by Conrail if a commuter authority offers a subsidy
payment which complies with RSPO's Standards * * * .'' (Emphasis
supplied; citation omitted.) Final rules were adopted in a notice
published in the Federal Register on January 5, 1983 (48 FR 413).
The ICCTA was the final legislative action applicable to these
regulations. As noted, under 49 U.S.C. 10501(c)(2), ``the Board does
not have jurisdiction under this part over mass transportation provided
by a local governmental authority.'' (Emphasis supplied.) Moreover,
under the ICCTA, sections 10361 and 10362 concerning RSPO were
repealed.
As indicated, although Conrail, under 45 U.S.C. 744a, is no longer
obligated to provide commuter passenger service, 45 U.S.C. 744(e) has
not been repealed. The ICCTA did, however, eliminate from section
744(e) references to subsidy standards set by RSPO. For example, before
the ICCTA, section 744(e)(4)(C) concerned a public body that ``offers a
rail service continuation payment, pursuant to subsection (c)(2)(A) of
this section and regulations issued by (RSPO) pursuant to section
205(d)(5) of this Act . * * *'' (Emphasis supplied.) The ICCTA removed
the language pertaining to regulations issued by RSPO, and now the
statute simply describes a public body that ``offers a rail service
continuation payment, pursuant to subsection (c)(2)(A) of this section
. * * *''
On the other hand, the ICCTA did not delete references in the
Amtrak Commuter statute to RSPO regulations. Section 24505(b)(2) still
states that RSPO ``may revise and update the [subsidy] regulations'',
and section 24505(e)(2) still requires RSPO to prescribe the notice of
discontinuance regulations.
Part 1157 Regulations
The regulations in part 1157, subpart A, pertaining to the
determination of commuter rail service subsidies, are detailed and
long. The subsidy standards prescribe various responsibilities for
RSPO. Under Sec. 1157.3(d)(4), upon request of either party, RSPO will
mediate disputes about the subsidy agreement, the subsidy standards,
and certain plans. Under Sec. 1157.4, parties desiring an
interpretation of the standards can file a written petition; RSPO will
issue an interpretation unless it determines that the subsidy standards
need to be amended, in which case it will institute a rulemaking
proceeding. Under Sec. 1157.7(d), in an impasse over joint special
studies, either party may submit the dispute to RSPO for resolution.
Finally, under Sec. 1157.3(f), the subsidized carrier is to submit
financial status reports to RSPO.
The regulations at 49 CFR part 1157, subpart B, implement the
statutory requirement of section 24505(e) that the contents of an
Amtrak Commuter discontinuance notice be prescribed. The regulations
repeat the statutory criteria that Amtrak Commuter can discontinue
service on 60 days' notice if it is not offered a subsidy or a subsidy
is not paid when due. The regulations prescribe the form and content of
the notice and method of posting. They also require that the notice be
served on the subsidizer, governor, designated state agency, RSPO, and
Amtrak.
Discussion and Conclusions
The changes made by the ICCTA require us to reexamine part 1157. We
note that these regulations were issued by an office (RSPO) that has
been abolished. They provide, moreover, for continuing responsibilities
by that office, particularly in subpart A (mediation, issuing
interpretations). Thus, at a minimum, the regulations
[[Page 32070]]
must be modified to remove the references to, and continuing duties of,
RSPO. In subpart B, RSPO's only function was to receive a copy of the
notice, and this responsibility can be easily eliminated.
The Federal Circuit has recently held:
``When a statute has been repealed, the regulations based on
that statute automatically lose their vitality. Regulations do not
maintain an independent life, defeating the statutory change.''
Aerolineas Argentinas v. U.S., 77 F.3d 1564, 1575 (Fed. Cir. 1996).
The broader issue, however, is whether the remaining regulations have a
validity independent of the existence of RSPO and the jurisdiction of
the Board. While the ICCTA deleted the RSPO references at 45 U.S.C.
744(e) pertaining to Conrail, 49 U.S.C. 24505(b) still incorporates
RSPO subsidy regulations in the requirements for an offer to provide
subsidy to Amtrak Commuter. We also note that under 49 U.S.C.
10501(c)(2) the Board does not have jurisdiction over mass
transportation provided by a local government authority. On its face,
this restriction appears to eliminate our authority to modify, or
resolve disputes under, the subsidy and notice
regulations.12 Nonetheless, it can be argued that there is
still a need for the regulations, which, because of their utility, are
``frozen in time'' (at least until further statutory changes are made).
We seek comment on these issues.
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\12\ Under section 10501(c)(1)(A) (i) and (ii), the term ``local
governmental authority'' has two meanings. First, it takes the
definition of 49 U.S.C. 5302(a)(6): State political subdivision, an
authority of a state or political subdivision, an Indian tribe, or a
public corporation, commission or board established under state law.
It also ``includes a person or entity that contracts with the local
governmental authority . * * *'' Section 10501(c)(1)(A)(ii). Under
section 10501(c)(1)(B), ``Mass transportation'' means the rail
services described in section 5302(a)(7): transportation providing
regular and continuing general or specific public transportation.
By comparison, section 24501(a)(2) states that Amtrak Commuter
``provides by contract commuter rail passenger transportation for a
commuter authority. * * *'' The terms ``commuter authority'' and
``commuter rail passenger transportation'' are similar to ``local
governmental authority'' and ``mass transportation''. Under 49
U.S.C. 24102(4), commuter authority is defined as ``a State, local,
or regional entity established to provide, or make a contract
providing for, commuter rail passenger transportation.'' Under
section 24102(5), commuter rail passenger transportation is ``short-
haul rail passenger transportation in metropolitan and suburban
areas usually having reduced fare, multiple-ride, and commuter
tickets and morning and evening peak period operations.'' Thus,
under either definition, the Board appears to have no jurisdiction
over such activities.
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The Board preliminarily concludes that the removal of the rule, if
adopted, would not have a significant effect on a substantial number of
small entities. The rule removal will lessen the filing requirements of
rail passenger carriers. Any harm to passengers that are considered
small entities would be minimal and, in any event, are required by law.
The Board, however, seeks comments on whether there would be effects on
small entities that should be considered.
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 1157
Railroads, Reporting and recordkeeping requirements, Uniform System
of Accounts.
Decided: June 2, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
PART 1157--[REMOVED]
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is proposed to be amended by removing part 1157.
[FR Doc. 97-15266 Filed 6-11-97; 8:45 am]
BILLING CODE 4915-00-P