[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 766-769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33284]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1011, 1034, 1102, 1104, and 1115

[Docket No. EP 697]


Amtrak Emergency Routing Orders

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board or STB) proposes to 
establish regulations governing the issuance of emergency routing 
orders upon application of the National Railroad Passenger Corporation 
(Amtrak). Pursuant to 49 U.S.C. 24308(b), the Board has statutory 
authority to require rail carriers to provide facilities immediately 
when necessary for the movement of Amtrak trains when Amtrak cannot 
operate its trains via normal routings due to rail line closures or 
other emergencies.

DATES: Comments are due by February 7, 2011. Reply comments are due by 
February 22, 2011.

ADDRESSES: Information or questions regarding this proposed rule should 
reference Docket No. EP 697 and be in writing addressed to: Chief, 
Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street, SW., Washington, DC 20423-0001.
    Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted 
to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Gabriel S. Meyer at 202-245-0389. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Board proposes to establish regulations 
governing the issuance of emergency routing orders upon application of 
the National Railroad Passenger Corporation (Amtrak). The rules will be 
codified at 49 CFR parts 1011, 1034, 1102, 1104, and 1115.
    Amtrak is a government-owned corporation that operates intercity 
passenger trains on an approximately 21,000-mile rail network, serving 
46 States and 3 Canadian provinces. During its 2010 fiscal year, Amtrak 
carried more than 28 million passengers. With the exception of certain 
rail lines located primarily in the northeastern United States, Amtrak 
does not own the lines over which its trains operate. Most of the lines 
Amtrak uses are owned and operated by freight railroads, which are 
subject to the Board's jurisdiction.
    Periodically, an established Amtrak route becomes blocked or closed 
as the result of a derailment, unscheduled maintenance, severe weather, 
or other emergency. In these circumstances, if an alternate rail 
routing exists, Amtrak may seek to detour its trains around the 
blockage using the alternate route. If no alternate route is available, 
Amtrak may be forced to suspend train operations.
    In most emergency rerouting situations, Amtrak reaches a voluntary 
agreement governing the terms of its use with the rail carrier that 
owns the alternate route. Occasionally, however, Amtrak is unable to 
reach an agreement. In this event, Amtrak may seek relief from the 
Board as provided by the statute:
* * * * *
    Operating During Emergencies.--To facilitate operation by Amtrak 
during an emergency, the Board, on application by Amtrak, shall 
require a rail carrier to provide facilities immediately during the 
emergency. The Board then shall promptly prescribe reasonable terms, 
including indemnification of the carrier by Amtrak against personal 
injury risk to which the carrier may be exposed. The rail carrier 
shall provide the facilities for the duration of the emergency.
* * * * *
49 U.S.C. 24308(b).

    Currently, there are no Board rules establishing procedures for 
Amtrak to obtain the relief authorized by the statute.\1\ The Board 
therefore proposes revising its rules to remove uncertainty regarding 
Amtrak emergency routing order applications. The proposed rules are set 
forth in this decision and are discussed below.
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    \1\ A Board order served on February 23, 1996 (Appointment of 
Agent to Require Emergency Routing of Amtrak Passenger Trains) (no 
docket number), named an agent of the Board, who was vested with 
authority to issue orders requiring railroads to make their 
facilities immediately available to Amtrak during emergencies. This 
continued a past practice of vesting, in named individuals, 
authority to issue such emergency orders. The agent named in the 
1996 decision has since retired. As a result, the Board is revising 
its procedures for Amtrak emergency routing order requests. The 
Board has rarely had to issue Amtrak emergency routing orders. It 
last issued one in 1997. STB Passenger Train Operation No. 123, STB 
served Aug. 12, 1997 (no docket number).
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Delegations of Authority

    Section 1011.4(a)(10): Under the proposed rules, authority to issue 
Amtrak emergency routing orders is delegated to the Chairman of the 
Surface Transportation Board (Chairman). The Board proposes adding this 
delegation of authority to others already contained

[[Page 767]]

in 49 CFR 1011.4(a). Additionally, in accordance with the existing rule 
at 49 CFR 1011.3(a)(3), in the Chairman's absence, authority for 
issuance of Amtrak emergency routing orders will be vested in the Vice 
Chairman, and in the event of the absence of both the Chairman and Vice 
Chairman, authority for issuance of Amtrak emergency routing orders 
will be vested in the remaining Board Member.

Filing Procedures

    The proposed rules establish procedures that Amtrak shall use when 
submitting emergency routing order applications. The procedures are 
found at 49 CFR parts 1034 and 1104.
    Section 1034.2(a). This proposed rule requires Amtrak to file 
emergency routing order applications in accordance with the Board's 
rules of practice at 49 CFR part 1104, except as otherwise provided in 
part 1034. The rule further requires that due to the time-sensitive 
nature of such applications, Amtrak shall file them with the Board in 
person or using the Board's e-filing option (as set forth at 49 CFR 
1104.1(e)). Simultaneously, Amtrak shall send facsimile copies of 
applications to the Office of the Chairman at 202-245-0452 and to the 
Director of the Office of Public Assistance, Governmental Affairs, and 
Compliance (OPAGAC) at 202-245-0461.\2\
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    \2\ The Board understands that, given Amtrak's service schedule, 
emergencies necessitating Board intervention under these proposed 
regulations may arise outside of normal business hours. As indicated 
by the very short response times in the proposed regulations, the 
Board is prepared to handle all requests quickly. If necessary, 
Amtrak may, during non-business hours, alert the Board via e-mail to 
an imminent filing by Amtrak to be made on the next business day. 
The Board will establish a designated e-mail address for this 
purpose at a later date.
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    Section 1034.2(b). This proposed rule describes the required 
contents of Amtrak emergency routing order applications. Applications 
shall: (1) Describe the nature of the emergency necessitating the 
routing order and its expected duration; (2) identify the Amtrak 
operations or trains that are or will be affected by the emergency; (3) 
provide an exact description of the facilities required for Amtrak's 
use, including, if available, mileposts of the detour line(s) it 
intends to use; (4) describe Amtrak's efforts to reach a consensual 
agreement with the carrier(s) whose facilities it seeks to use, 
including the name(s) of the representative(s) contacted; (5) include 
proposed terms of the detour agreement, including indemnification of 
the carrier(s) by Amtrak; and (6) specify the date on which Amtrak 
intends to begin using the facilities.
    Section 1034.2(c). This proposed rule requires Amtrak, when filing 
an emergency routing order application, to make best efforts to 
simultaneously serve a copy of its application upon any affected rail 
carrier(s) via facsimile, e-mail, or in person, to confirm receipt of 
the application, and to certify to the Board that it has done so. 
Because of the emergency nature of such applications, no other means of 
service is sufficient to provide timely notice to affected parties. 
This proposed rule also requires Amtrak to comply with the general 
service requirements of 49 CFR 1104.12, to the extent they do not 
conflict with this rule. For purposes of fulfilling the requirement 
under this rule that Amtrak simultaneously serve affected carriers, 
Amtrak must serve its application upon the representative(s) of the 
carrier(s) contacted in its efforts to reach a consensual agreement 
governing Amtrak emergency routing, and upon the registered agent(s) of 
the carrier(s).
    Section 1034.2(d). This proposed rule establishes that any carrier 
potentially affected by an Amtrak emergency routing order application 
must file a reply with the Board within 1 business day following 
Amtrak's service of its application upon the carrier. However, because 
the language of the authorizing statute requires that the Board 
``promptly prescribe'' emergency routing agreement terms, it may be 
impractical in some instances for the Board to await replies from 
affected carriers before acting on Amtrak's request. The Board will 
therefore consider replies as time permits and, if necessary, the Board 
may contact Amtrak or affected carriers to seek their input. (See the 
proposed rule at 49 CFR 1102.2(b)(4) governing ex parte 
communications.) When filing a reply, an affected carrier shall be 
governed by the same filing and service rules as those governing 
Amtrak's filing.
    Section 1034.2(e). This proposed rule requires the Chairman, or in 
the Chairman's absence, the Vice Chairman or remaining Board Member, to 
issue an initial decision granting or denying Amtrak's application for 
an emergency routing order no later than 1 business day after Amtrak 
files it with the Board.
    Section 1104.12(b). This rule provides for certain exceptions to 
the Board's rules governing service of pleadings. As modified, the rule 
incorporates by reference the special filing and service requirements 
for Amtrak emergency routing order applications and replies thereto 
contained in 49 CFR 1034.2(a) and (c). The rule also provides that 
appeals and replies thereto are subject to the requirements of 49 CFR 
1034.2(a) and (c).

Ex Parte Communications

    Section 1102.2(b)(4). The Board proposes to add this rule to the 
list of instances in which ex parte communications are not prohibited. 
This rule is necessary to allow the Board, or designated Board staff, 
to obtain information in situations in which it may be impractical to 
await formal written submissions from Amtrak or affected carriers. This 
rule also permits ex parte communications with Amtrak, or carrier(s) 
over whose lines Amtrak seeks emergency routing authority, in 
connection with an appeal of the Board's initial decision on an Amtrak 
emergency routing order application.

Appeals

    Section 1115.2(h)(1). This proposed rule provides that parties may 
appeal initial Amtrak emergency routing order decisions. Under the 
proposed rule, any appeal must be filed within 1 business day following 
service of the decision.
    Section 1115.2(h)(2). Under this proposed rule, a reply to an 
appeal is optional. Any reply must be filed within 1 business day 
following the filing of the appeal, and the Board will consider replies 
only if time permits. If necessary, the Board may contact Amtrak or an 
affected carrier to seek its input regarding an appeal. (See proposed 
rule at 49 CFR 1102.2(b)(4) governing ex parte communications.)
    Section 1115.2(h)(3). This proposed rule requires the entire Board 
to issue a decision granting or denying an appeal of an initial Amtrak 
emergency routing order decision within 1 business day following the 
filing of an appeal.
    Section 1115.2(h)(4). This proposed rule provides that the filing 
of an appeal will not stay the effectiveness of an Amtrak emergency 
routing order that has already taken effect, or otherwise stay the 
effectiveness of an initial decision regarding Amtrak's application for 
an emergency routing order.
    Section 1115.2(i). This proposed rule provides that when filing 
appeals of initial decisions on Amtrak emergency routing applications, 
or replies to such appeals, parties are governed by the special service 
rules contained at 49 CFR 1034.2(a) and (c).
    The Board further proposes modifying, as necessary, section 
1115.2(e) (time to file appeals and replies to appeals) and section 
1115.2(f) (appeal staying effectiveness of decision) to reflect the 
addition of section 1115.2(h). Section 1115.2(e) currently permits 
parties to appeal

[[Page 768]]

decisions of an individual Board Member (including the Chairman) within 
20 days following issuance, and permits parties to file replies to 
appeals within 20 days following the filing of an appeal. Under the 
proposed rules, section 1115.2(e) will establish that the 20-day appeal 
and reply deadlines will not apply to appeals of initial decisions on 
Amtrak emergency routing order applications. Section 1115.2(f) 
currently provides that a timely filed appeal will stay the 
effectiveness of a decision pending a determination of the appeal. 
Under the proposed rules, section 1115.2(f) will provide that the 
filing of an appeal will not stay the effectiveness of an initial 
decision on an Amtrak emergency routing order application.

Conclusion

    With regard to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
601-612, this action directly impacts Amtrak and does not directly 
impact small entities as defined in the Regulatory Flexibility Act. 
Accordingly, pursuant to 5 U.S.C. 605(b), the Board certifies that 
these proposed regulations will not have a significant impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act. A copy of this decision is being provided 
to the Chief Counsel for Advocacy, Small Business Administration.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

List of Subjects

49 CFR Part 1011

    Administrative practice and procedure, authority delegations 
(Government agencies), organization and functions (Government 
agencies).

49 CFR Part 1034

    Railroads.

49 CFR Part 1102

    Communications.

49 CFR Part 1104

    Administrative practice and procedure.

49 CFR Part 1115

    Appellate procedures.

    It is ordered:
    1. The Board proposes rules as set forth in this decision. Notice 
of the proposed rules will be published in the Federal Register.
    2. Comments regarding the proposed rules are due by February 7, 
2011. Reply comments are due by February 22, 2011.

    Decided: December 22, 2010.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Nottingham.
Andrea Pope-Matheson,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend parts 1011, 1034, 1102, 1104, 
and 1115 of title 49, chapter X, of the Code of Federal Regulations, as 
follows:

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

    1. The authority citation for part 1011 is revised to read as 
follows:

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; and 49 U.S.C. 701, 721, 
11123, 11124, 11144, 14122, 15722, and 24308(b).

    2. Amend Sec.  1011.4 by adding paragraph (a)(10) to read as 
follows:


Sec.  1011.4  Delegations to Individual Board Members.

    (a) * * *
    (10) Issuance of decisions on Amtrak applications for emergency 
routing orders, filed pursuant to 49 U.S.C. 24308(b) (Operating during 
emergencies).
* * * * *

PART 1034--ROUTING OF TRAFFIC

    3. The authority citation for part 1034 is revised to read as 
follows:

    Authority: 49 U.S.C. 721, 11123, and 24308(b).

    4. Add Sec.  1034.2 to read as follows:


Sec.  1034.2  Amtrak emergency routing orders.

    (a) Filing. All Amtrak applications for emergency routing orders 
shall be made in accordance with the Board's rules of practice at 49 
CFR Part 1104, except to the extent otherwise provided in this 
paragraph (a) and paragraph (c) of this section.
    (1) Amtrak shall file any application for an emergency routing 
order with the Board in person or using the Board's e-filing option (as 
described at 49 CFR 1104.1(e)).
    (2) Simultaneously with its filing of an emergency routing order 
application, Amtrak shall send facsimile copies of its application to 
the Office of the Chairman at 202-245-0452 and to the Director of the 
Office of Public Assistance, Governmental Affairs, and Compliance 
(OPAGAC) at 202-245-0461.
    (b) Contents of application. Amtrak applications for emergency 
routing orders shall contain the following information:
    (1) A description of the nature of the emergency necessitating the 
routing order and its expected duration.
    (2) A description of Amtrak trains or operations that are or will 
be affected by the emergency.
    (3) An exact description of the facilities required for Amtrak's 
use, including mileposts of the detour line(s), if available.
    (4) An explanation of Amtrak's efforts to reach a consensual 
agreement with the carrier(s) whose facilities Amtrak seeks to use, 
including the name(s) of the representative(s) contacted.
    (5) Proposed terms of the detour agreement, including 
indemnification of the carrier(s) by Amtrak.
    (6) The date on which Amtrak intends to begin using the facilities.
    (c) Service. When filing an emergency routing order application 
with the Board, Amtrak shall certify to the Board that it 
simultaneously served, or made best efforts to serve, its application 
upon the affected rail carrier(s) via facsimile, e-mail, or in person, 
and that its application was received by the affected rail carrier(s). 
In serving affected rail carrier(s), Amtrak shall serve its application 
upon the representative(s) of the carrier(s) contacted in its efforts 
to reach a consensual agreement governing Amtrak emergency routing, and 
shall serve the registered agent(s) of the carrier(s). Amtrak shall 
also comply with the general service requirements of 49 CFR 1104.12 to 
the extent they do not conflict with this paragraph (c).
    (d) Replies. Any carrier potentially affected by an Amtrak 
application for an emergency routing order shall file a reply with the 
Board within 1 business day of the time Amtrak serves a copy of its 
application upon the carrier. The Board will consider replies as time 
permits. When filing a reply, a carrier shall comply with the filing 
and service requirements contained in paragraphs (a) and (c) of this 
section, and 49 CFR 1104.12 to the extent they do not conflict with 
paragraphs (a) and (c) of this section.
    (e) Decisions. An initial decision granting or denying Amtrak's 
application for an emergency routing order shall be issued no later 
than 1 business day after Amtrak files its application for an emergency 
routing order with the Board.

PART 1102--COMMUNICATIONS

    5. The authority citation for part 1102 is revised to read as 
follows:

    Authority: 49 U.S.C. 721 and 24308(b).

    6. Amend Sec.  1102.2 by adding paragraph (b)(4) to read as 
follows:

[[Page 769]]

Sec.  1102.2  Ex parte communications prohibited; penalties provided.

* * * * *
    (b) * * *
    (4) Any communication made by the Board, any Board Member, or 
designated staff member, to obtain information from Amtrak or from a 
carrier(s) over whose lines Amtrak seeks emergency routing authority, 
regarding an emergency routing order application or an appeal thereof, 
pursuant to the Board's authority under 49 U.S.C. 24308(b).
* * * * *

PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-
PLEADINGS, GENERALLY

    7. The authority citation for part 1104 is revised to read as 
follows:

    Authority: 5 U.S.C. 553 and 559; 18 U.S.C. 1621; 21 U.S.C. 862; 
and 49 U.S.C. 721 and 24308(b).

    8. Amend Sec.  1104.12 by revising paragraph (b) to read as 
follows:


Sec.  1104.12  Service of pleadings and papers.

* * * * *
    (b) Exceptions. (1) Copies of letters to the Board relating to oral 
argument under part 1116, and subpoenas under Sec.  1113.2, need not be 
served on other parties of the proceeding. Service of comments in 
rulemaking proceedings is not required, unless specifically directed by 
the Board.
    (2) When filing an emergency routing order application, or reply to 
such application, with the Board, Amtrak and affected carriers shall 
comply with the special filing and service requirements contained in 49 
CFR 1034.2(a) and (c). These requirements also apply to the filing of 
an appeal to an initial Amtrak emergency routing order decision or to a 
reply to such an appeal. Amtrak and affected carriers shall comply with 
the general service requirements of paragraph (a) of this section, to 
the extent they do not conflict with 49 CFR 1034.2(a) and (c).
* * * * *

PART 1115--APPELLATE PROCEDURES

    9. The authority citation for part 1115 is revised to read as 
follows:

    Authority: 5 U.S.C. 559, and 49 U.S.C. 721 and 24308(b).

    10. Amend Sec.  1115.2 by revising paragraphs (e) and (f), and 
adding paragraphs (h) and (i) to read as follows:


Sec.  1115.2  Initial decisions.

* * * * *
    (e) Except as provided in paragraph (h)(1) of this section, appeals 
must be filed within 20 days after the service date of the decision or 
within any further period (not to exceed 20 days) the Board may 
authorize. Except as provided in paragraph (h)(2) of this section, 
replies must be filed within 20 days of the date the appeal is filed.
    (f) Except as provided in paragraph (h)(4) of this section, the 
timely filing of an appeal to an initial decision will stay the 
effectiveness of the action pending determination of the appeal.
* * * * *
    (h) Appeals to initial decisions on Amtrak applications for 
emergency routing orders.
    (1) Any carrier potentially affected by an initial Amtrak emergency 
routing order decision may appeal such a decision. Any appeal must be 
filed within 1 business day following service of the initial decision.
    (2) A reply to an appeal of an initial Amtrak emergency routing 
order decision is optional. Any reply must be filed within 1 business 
day following the filing of the appeal. The Board will consider replies 
only if time permits.
    (3) The entire Board shall issue a decision granting or denying an 
appeal to an initial Amtrak emergency routing order decision within 1 
business day following the filing of an appeal.
    (4) Filing of an appeal will not stay the effectiveness of an 
Amtrak emergency routing order that has already taken effect, or 
otherwise stay the effectiveness of an initial decision on Amtrak's 
application for an emergency routing order.
    (i) When filing appeals to initial decisions on Amtrak emergency 
routing order applications, and replies to such appeals, parties are 
governed by the special service rules contained at 49 CFR 1034.2(a) and 
(c).
[FR Doc. 2010-33284 Filed 1-5-11; 8:45 am]
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