[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