[Federal Register Volume 62, Number 194 (Tuesday, October 7, 1997)]
[Notices]
[Pages 52374-52376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26541]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33469]


Application of the National Railroad Passenger Corporation Under 
49 U.S.C. 24308(a)--Union Pacific Railroad Company and Southern Pacific 
Transportation Company

AGENCY: Surface Transportation Board, DOT.

ACTION: Order and request for comments.

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SUMMARY: The Board is seeking comments from interested persons on the 
application of the National Railroad Passenger Corporation (Amtrak) 
under 49 U.S.C. 24308(a), formerly section 402(a) of the Rail Passenger 
Service Act (the Act), for an order determining under the law the 
nature and extent of the duty of the Union Pacific Railroad Company 
(UP) and its affiliate, Southern Pacific Transportation Company (SP) 
(collectively, UP/SP), to allow Amtrak to use UP/SP's tracks and 
facilities for the carriage of express. The Board is also ordering UP/
SP to continue to make its tracks and facilities available to Amtrak, 
as directed herein, while this proceeding is pending.

DATES: Written notices of intent to participate are due by October 14, 
1997. Shortly thereafter, we will serve a preliminary service list and 
request for written corrections. By October 31, 1997, we will serve any 
necessary corrections to the service list. Opening comments are due by 
November 10, 1997. Reply comments are due by November 25, 1997.

ADDRESSES: Send an original and 10 copies of notices of intent to 
participate and comments, referring to ``STB Finance Docket No. 
33469,'' to: Surface Transportation Board, Office of the Secretary, 
Case Control Unit, 1925 K Street, N.W., Washington, DC 20423. Opening 
and reply comments must be served on the persons identified as 
``parties of record'' on the service list.

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

SUPPLEMENTARY INFORMATION: This proceeding raises questions about the 
definition of ``express'' traffic and the extent to which freight 
railroads are required to allow Amtrak to use their facilities to carry 
express. Freight railroads must permit Amtrak to operate over their 
lines. The provisions of 49 U.S.C. 24305(a)(1) and 24305(c)(2) 
authorize Amtrak to operate intercity

[[Page 52375]]

and commuter rail passenger transportation and to transport mail and 
express. In addition, the provisions of 49 U.S.C. 24306(a) and 
24101(c)(1)(B) direct Amtrak to seek to increase its revenues from the 
transportation of mail and express. The statute, however, does not 
define ``express.''
    Historically, in addition to its passenger service, Amtrak has 
carried what it and UP/SP appear to agree is express traffic. In recent 
months, however, Amtrak has taken steps that it indicates are necessary 
to improve its financial condition by carrying additional volumes of 
freight that it describes as express. Amtrak's financial condition is 
well known.
    UP/SP has resisted Amtrak's efforts to expand its freight 
operations. UP/SP's position is that the type of traffic that Amtrak 
contemplates now handling falls into the category of general freight 
rather than express as intended under the law. UP/SP also argues that 
the expanded freight operations that Amtrak contemplates would create 
operational and logistical problems for the railroads over whose tracks 
Amtrak operates, as well as the towns and cities through which Amtrak 
operates. The recent operational difficulties that have been 
experienced by UP/SP are well known, as are the concerns of many towns 
and cities about train traffic in general.
    Because Amtrak and UP/SP could not resolve the issue privately, by 
application filed September 16, 1997, under 49 U.S.C. 24308(a), 
formerly section 402(a) of the Act,1 Amtrak seeks an order 
that: (1) requires UP/SP to continue to make available to Amtrak the 
facilities necessary for it to continue to transport express on its 
trains while this proceeding is pending; and (2) establishes a 
procedural schedule ``leading ultimately to entry of a final order 
determining that Amtrak's transport of express traffic is necessary to 
carry out the purposes of the Act, and requiring UP/SP to make 
available to Amtrak the facilities and services needed to allow Amtrak 
trains to transport express.''
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    \1\ Section 402(a) was originally codified at 45 U.S.C. 562(a). 
In Pub. L. No. 103-272, 108 Stat. 745, enacted on July 5, 1994, 
section 402(a) was recodified in its present form as 49 U.S.C. 
24308(a). In section 205 of the ICC Termination Act of 1995, Pub. L. 
No. 104-88, 109 Stat. 803, enacted December 29, 1995, references to 
the ``Interstate Commerce Commission'' in this and other statutory 
provisions were replaced with references to the Surface 
Transportation Board.
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    In its application, Amtrak states that its existing general 
agreement governing its relationship with UP/SP, which was scheduled to 
expire on September 30, 1997, has been extended through October 31, 
1997. However, Amtrak asserts, UP/SP is unwilling to extend beyond 
September 30, 1997, a ``provision in Amtrak's agreements with UP/SP 
that gives Amtrak the right to carry express on Amtrak's trains to the 
extent authorized by the Act.''
    UP/SP filed a reply on September 23, 1997. In its reply, UP/SP 
takes issue with Amtrak's contentions that the freight operations that 
Amtrak contemplates are operationally feasible, and that they are 
consistent with the express service provisions of the Act. UP/SP states 
in that reply that it does not object to entry of an order preserving 
the status quo while Amtrak's application is being reviewed, as long as 
the order does not allow Amtrak to effect a ``blanket authorization for 
unlimited expansion of its commodity-hauling operation.''
    On September 26, 1997, Amtrak sought leave to file a tendered 
response to UP/SP's reply, which UP/SP has opposed. Amtrak asserts that 
it should be permitted to file the response because it could not have 
reasonably anticipated the arguments that UP/SP would be advancing in 
its reply. We do not find that assertion credible; indeed, given the 
extensive relief that Amtrak has sought, UP/SP's reply raises the types 
of arguments we would have expected it to present. Nevertheless, we 
will accept and consider Amtrak's response, and UP/SP's opposition to 
it, in the interest of developing a complete record.

Discussion and Conclusions

    Under 49 U.S.C. 24308(a)(2), we have authority to prescribe the 
terms and compensation for Amtrak's use of facilities owned by, or 
receipt of services to be provided by, freight railroads in connection 
with Amtrak's operation over their track, if (1) the parties cannot 
agree and (2) such prescription is necessary to carry out the purposes 
of the Act. Here, it is apparent that the parties cannot agree, as 
Amtrak has asked us to declare the nature and extent of UP/SP's duty to 
make its facilities available to Amtrak for the carriage of express, 
which is an important issue that bears on the fundamental purposes of 
the Act.
    Accordingly, we are commencing a proceeding to resolve this 
dispute.\2\ Because of the potentially broad impact of any ruling that 
we might issue in this matter, we are publishing this notice in the 
Federal Register soliciting comments from persons that may be affected: 
other railroads and railroad employees, potential users, and, 
particularly insofar as operational matters are concerned, cities and 
towns and the Secretary of Transportation.
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    \2\ After we resolve this matter, we may also be called upon to 
address other issues relating to the facilities that UP/SP must 
provide to Amtrak, such as the incremental cost of access and the 
terms of payment. At this point, however, we are focusing only on 
the narrow issue raised. We expect that any final compensation 
methodology that we may prescribe would be made retroactive to 
October 1, 1997.
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    As noted, this dispute revolves around the meaning of the statutory 
term ``express'' in the Act, and whether there are limits on the type 
and quantity of freight traffic that Amtrak may carry consistent with 
the statutory authorization to carry express. Amtrak argues that there 
are no ``defined limits'' to its authority to transport express 
(Response at 2),\3\ and that UP/SP is improperly taking the position 
that: (1) The Act does not give Amtrak the right to transport carload 
or truckload shipments of express; (2) certain commodities transported 
by Amtrak do not constitute express; \4\ and (3) Amtrak may be 
subjected to overall footage limits on individual trains carrying 
express cars.
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    \3\ Amtrak asserts that passenger trains historically operated 
``with 30 to 40 mail and express cars,'' and that, ``As recently as 
1959, intercity passenger trains derived as much as 46% of their 
revenue from mail and express. * * *''
    \4\ Amtrak asserts that Board precedent does not limit the 
commodities that can qualify as express.
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    UP/SP argues that Amtrak's efforts to solicit carload traffic (such 
as carloads of beer), and to expand considerably the length of its 
trains, are inconsistent with the statutory intent that transportation 
of mail and express traffic be ancillary to Amtrak's provision of 
passenger service. UP/SP also argues that expansion of Amtrak's non-
passenger services would produce serious operational and logistical 
problems at the various cities and towns through which UP/SP 
operates.\5\
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    \5\ In its response, Amtrak asserts that its anticipated 
expansion of operations will not produce operational problems.
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    Commenters should address these issues. In addition to the 
operational concerns and the commodity/train length issues raised by 
UP/SP, commenters should address the legislative intent in enacting the 
Act, and, in particular, the extent to which Congress intended that 
Amtrak's express services be ancillary to its passenger services. We 
must note that we expect all commenters to express their fully 
developed positions in their opening comments, and not to back-load 
their filings by reserving their major points to their reply comments.
    Amtrak has asked us that, while this proceeding is pending, we 
issue an interim order that will require UP/SP to

[[Page 52376]]

continue to make its facilities available to Amtrak for handling 
express traffic so that Amtrak will be able ``to continue to serve 
shippers for whom it currently transports both carload and other 
shipments, and for whom it has commitments to do so after October 1.'' 
Amtrak's objective is to expand its freight business so that it can 
obtain increased revenues during the pendency of the proceeding. In its 
application, Amtrak indicates that it wants us to facilitate this 
objective by preserving the status quo, which, in Amtrak's view, means 
accepting its position that there are not and have never been any 
limits on its authority to carry what it determines to be express. 
Response at 5-6.\6\ In its response, Amtrak indicates that it will 
accept an interim 18-car train limit on the number of cars in its 
trains, on the ground that UP/SP has already agreed that 18-car trains 
are operationally feasible and have been typically operated in the 
past. In its most recent filing, UP/SP disputes Amtrak's statements 
about the feasibility of 18-car trains at certain locations, such as 
Reno, Nevada, and Oakland, California.
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    \6\ In support of its argument that the Board must order UP/SP 
to open its facilities, on an interim basis, to whatever Amtrak 
decides to characterize as express, Amtrak states that it has 
already purchased or committed to obtain additional equipment, and 
has entered into agreements with customers to carry additional 
freight. The Board notes in this regard that any party that takes 
action assuming in advance that a difficult legal issue will be 
resolved in its favor assumes whatever risks are associated with 
such action.
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    We cannot, in an interim order, direct UP/SP to allow Amtrak access 
for whatever traffic Amtrak declares is express. The limits on Amtrak's 
freight traffic authority are precisely what we are being asked to 
resolve in the case, and that is the issue on which we are now seeking 
public comment. Typically in these proceedings,\7\ we require that the 
parties maintain the status quo pending our resolution of the matter. 
However, because of the variety of potential combinations in the Amtrak 
operations that have been or might have been conducted in the past at 
each of the numerous stations that Amtrak serves (regarding, for 
example, train consist issues), an order simply directing the parties 
to maintain the ``factual'' status quo would likely produce uncertainty 
and continued litigation. Therefore, we will establish a numerical 
equipment limitation for the interim that appears to be consistent with 
the representations of both parties. Except where it is operationally 
infeasible, UP/SP generally may not limit Amtrak's access to less than 
18 cars. Consistent with Amtrak's representation that it does not need 
to operate more than 600 feet of express cars during the interim 
period, however, UP/SP may limit Amtrak to 9 express cars per train. 
Thus, the trains that UP/SP must permit Amtrak to operate over UP/SP's 
lines may be as long as 18 cars, and may contain as many as 9 express 
cars. This interim order, we stress, is not intended to prejudge, in 
any way, the matters on which we have sought comment, but is simply 
designed as a practical solution while the case is pending.
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    \7\ See Application of the National Railroad Passenger Corp. 
Under 49 U.S.C. 24308(a)--Order to Require Service and Set 
Compensation Terms, STB Finance Docket No. 32911 (STB served Apr. 
30, 1996).
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    This decision will not significantly affect either the quality of 
the human environment or the conservation of energy resources.
    It is ordered:
    1. On or after September 30, 1997, UP/SP will preserve on an 
interim basis the current provisions in the parties' agreement 
governing express and the practices thereunder as provided in this 
decision and will provide services, tracks, and facilities to Amtrak in 
accordance with those provisions and practices.
    2. A proceeding is instituted to investigate the extent of UP/SP's 
obligation under the Act to allow Amtrak to use UP/SP's lines and 
facilities for the carriage of express.
    3. Commenters shall comply with the procedural schedule set out 
earlier.
    4. Amtrak's request for leave to file its response is granted.
    5. This decision is effective on its date of service.

    Decided: September 29, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-26541 Filed 10-6-97; 8:45 am]
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