[Federal Register Volume 75, Number 153 (Tuesday, August 10, 2010)]
[Notices]
[Pages 48409-48410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19645]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. EP 698]


Establishment of the Toxic by Inhalation Hazard Common Carrier 
Transportation Advisory Committee

AGENCY: Surface Transportation Board.

ACTION: Notice of establishment of the Toxic by Inhalation Hazard 
Common Carrier Transportation Advisory Committee.

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SUMMARY: As required by Sec.  9(a)(2) of the Federal Advisory Committee 
Act (FACA), 5 U.S.C. app., the Surface Transportation Board hereby 
gives notice that, following consultation with the General Services 
Administration, the Board will create the Toxic by Inhalation Hazard 
Common Carrier Transportation Advisory Committee (TIHCCTAC), to provide 
independent advice and policy suggestions to the Board on issues 
related to the common carrier obligation with respect to the rail 
transportation of toxic by inhalation hazards (TIH), and specifically, 
to outline what is a railroad's reasonable response to a shipper's 
request that it transport TIH cargo. The TIHCCTAC will convene for a 
two-year period during which the Board anticipates it will produce a 
report that will include a recommended policy statement for further 
consideration by the Board. The Board may renew the TIHCCTAC charter if 
the Board deems it advisable. This notice seeks comments on the 
proposed TIHCCTAC structure, as outlined below. It also requests 
nominations for members of the TIHCCTAC.
    In the context of its proposed structure, outlined below, the Board 
seeks input from interested persons on a number of issues, including: 
(1) What should be the appropriate scope of such a committee's mandate? 
(2) How would the scope of the committee's mandate affect its utility? 
(3) What would be the optimum size of such a committee? and (4) How 
should the committee's membership be allocated among various 
stakeholder groups to achieve a fairly balanced ``cross section of 
those directly affected, interested, and qualified,'' as required under 
FACA, 41 CFR 102-3.60(b)(3).

DATES: Comments regarding the proposed TIHCCTAC structure and scope 
must be received by 5 p.m. E.D.T., Friday, September 24, 2010. 
Nominations for members must be received by 5 p.m. E.D.T., Monday, 
October 25, 2010.

ADDRESSES: All comments and nominations should be submitted to the 
Board, and may be submitted either via the Board's e-filing format or 
in the traditional paper format. Any person using e-filing should 
comply with the instructions at the E-FILING link on the Board's Web 
site, at http://www.stb.dot.gov. Any person submitting a nomination in 
the traditional paper format should send an original and 10 copies to: 
Surface Transportation Board, Attn: STB Ex Parte No. 698, 395 E Street, 
SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Ronald Molteni, Office of the General 
Counsel, at 202-245-0267. [Assistance for the hearing impaired is 
available through the Federal Information Relay Service (FIRS) at 1-
800-877-8339.]

SUPPLEMENTARY INFORMATION: The Board, created by Congress in 1996 to 
take over many of the functions previously performed by the Interstate 
Commerce Commission, exercises broad authority over transportation by 
rail carriers, including regulation of railroad rates and service (49 
U.S.C. 10701-10747, 11101-11124), as well as the construction, 
acquisition, operation, and abandonment of rail lines (49 U.S.C. 10901-
10907) and railroad line sales, consolidations, mergers, and common 
control arrangements (49 U.S.C. 10902, 11323-11327). As part of its 
regulatory function, the Board oversees the common carrier obligation.
    The common carrier obligation refers to the statutory duty of 
railroads to provide ``transportation or service on reasonable 
request.'' 49 U.S.C. 11101(a). A railroad may not refuse to provide 
service merely because to do so would be inconvenient or unprofitable. 
G.S. Roofing Prods. Co. v. STB, 143 F.3d 387, 391 (8th Cir. 1998). The 
common carrier obligation, however, is not absolute, and service 
requests must be reasonable. Id. In recent years, the Board has seen an 
increasing number of questions arising, both formally and informally, 
regarding the extent of a railroad's common carrier obligation. As a 
result, in its docket styled, Common Carrier Obligation of Railroads, 
EP 677, the Board held a hearing on April 24-25, 2008, to hear comments 
from interested parties on the common carrier obligation and to provide 
a forum for discussion of that obligation.
    That hearing raised issues involving the obligation of railroads to 
haul hazardous materials, including toxic by inhalation hazards. For 
many hazardous materials, including TIH, rail is the safest and most 
efficient mode of transportation. But, according to the railroads, the 
transportation of these materials subjects them to the potential for 
extremely high liability in the event of an accident.
    Consequently, to allow a more detailed discussion, the Board opened 
another docket styled, Common Carrier Obligation of Railroads--
Transportation of Hazardous Materials, EP 677 (Sub-No. 1), and held a 
hearing on July 22, 2008, to further explore the issues surrounding the 
transportation of hazardous materials by rail. At that hearing, the 
Board heard testimony that touched on, among other things, specific 
potential policy solutions to the liability concern.
    In EP 677 (Sub-No. 1), the Board invited parties to comment on what 
constitutes a reasonable request for service involving the movement of 
TIH, as well as whether there are unique costs associated with the 
transportation of hazardous materials, and if so, how railroads recover 
those costs.
    The American Association of Railroads (AAR) suggested that the 
Board adopt the following policy statement:

    It would not be an unreasonable practice for a rail carrier, 
under the provisions of 49 U.S.C. 11101(a) and 49 U.S.C. 10702, to 
require (if it elected to), as a condition of providing common 
carrier transportation

[[Page 48410]]

services, that a TIH materials shipper indemnify and hold harmless 
the railroad against liability arising from a release of such 
materials in excess of (1) the maximum amount of insurance that the 
railroad carries for TIH transport or (2) $500 million for Class I 
railroads, whichever is greater; and to provide reasonable 
assurances in the form of insurance or other means to support such 
indemnity.\1\

    \1\ AAR Comments, EP 677 (Sub-No. 1) at 24.
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    Other commentators, particularly those representing TIH shippers' 
interests, urged the Board to reject this proposed policy statement. 
But some, while lamenting escalating rates they believe are priced to 
drive TIH off the railroads, expressed a willingness to explore 
allocations of excess liability insurance to cover a limited scope of 
occurrences while not reducing a railroad's incentive to prudently and 
safely handle and transport TIH.
    While the Board views the safe transportation of hazardous 
materials as crucial to this nation's economic and national security, 
and the transportation by rail of hazardous materials as vital to our 
nation's industrial production, the Board is an economic regulator, 
and, as such, seeks to address the economic component of TIH transport. 
It hopes to facilitate dialogue regarding and resolution of those 
economic concerns between and among TIH shippers and the railroads.
    The Board believes that an industry-derived solution to the 
question of what constitutes a reasonable response to a shipper's 
request that a railroad transport TIH cargo might be a better and 
potentially more economically sustainable solution than a Board-imposed 
solution, though the latter remains a lawful alternative in the absence 
of industry-wide consensus. Accordingly, the Board will place in 
abeyance docket EP 677 (Sub-No. 1) and will not rule on the railroad 
industry's proposed policy statement at this time. Instead, the Board 
proposes to establish the TIHCCTAC to provide independent advice and 
policy recommendations to the Board. TIHCCTAC will be directed to 
provide advice on issues pertaining to the common carrier obligation 
with respect to the rail transportation of TIH, and specifically, the 
question of what is a railroad's reasonable response to such a request.
    The Board anticipates that the TIHCCTAC will consist of a balanced 
cross-section of members at the general counsel or vice president level 
of stakeholders involved in the rail transportation of TIH, including 
but not limited to railroads, TIH shippers, insurers or underwriters, 
and tank car owners, lessors, or manufacturers.
    The TIHCCTAC will be tasked with producing a report and 
recommendations on how the Board should balance the common carrier 
obligation to transport this commodity with the risk of catastrophic 
liability in setting appropriate rail transportation liability terms 
for TIH cargo. The TIHCCTAC's focus and its solution to the question 
presented above should revolve around the amount of economic 
responsibility for liability that railroads can reasonably ask TIH 
shippers to assume before the carrier will transport TIH cargo. The 
TIHCCTAC shall function solely as an advisory body and will comply with 
the provisions of FACA and its implementing regulations.
    For the purpose of soliciting comments, the Board proposes the 
following structure. The TIHCCTAC shall consist of up to 27 voting 
members, including its chair. Members of the TIHCCTAC will be chosen by 
the Chairman of the STB and shall include at a minimum: 7 
representatives from the Class I and II railroads; 3 representatives 
from Class III railroads; 5 representatives from chlorine shippers; 5 
representatives from anhydrous ammonia shippers; 4 representatives 
currently engaged in academia or policy analysis; 2 representatives 
with an insurance or underwriting background; and 1 representative from 
tank car owners, car lessors, or car manufacturers. The 3 members of 
the Board shall serve as ex officio (non-voting) members of the 
Committee. In addition to the members described above, the Chairman of 
the STB may invite representatives from the U.S. Departments of 
Homeland Security and Transportation (including their affiliated 
agencies) to serve the TIHCCTAC in advisory capacities as ex officio 
(non-voting) members. The Chairman of the STB will appoint the 
TIHCCTAC's chair. The Chairman of the STB may constitute an executive 
committee and subcommittees as necessary for the TIHCCTAC to discharge 
its responsibilities. The Board contemplates a voting structure that 
will provide each voting member with a vote. But, for any proposal to 
become a recommendation of the TIHCCTAC, a majority vote of the 
railroad interests and a majority vote of the shipping interests will 
be required.
    The TIHCCTAC will meet monthly with an anticipatory commencement in 
the final quarter of 2010, after it has been established in compliance 
with FACA. No honoraria, salaries, travel or per diem are available to 
members of the TIHCCTAC; however, reimbursement for travel expenses may 
be sought from the Board in cases of hardship.
    Chairman Elliott will appoint Ronald Molteni of the Board's Office 
of General Counsel to serve as the Designated Federal Official--the 
agency's liaison to the TIHCCTAC.
    Suggestions for members of the TIHCCTAC should be submitted in 
letter form, identifying the name of the candidate; evidence of the 
interests the candidate will represent; and a representation that the 
candidate is willing to serve a two-year term as a member of the 
TIHCCTAC, with the possible charter renewal leading to a potential 
second term.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Authority:  49 U.S.C. 721, 49 U.S.C. 11101; 49 U.S.C. 11121.

    Decided: July 30, 2010.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Nottingham.
Kulunie L. Cannon,
Clearance Clerk.
[FR Doc. 2010-19645 Filed 8-9-10; 8:45 am]
BILLING CODE 4915-01-P