[Federal Register Volume 81, Number 149 (Wednesday, August 3, 2016)]
[Proposed Rules]
[Pages 51147-51149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18102]


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SURFACE TRANSPORTATION BOARD

49 CFR Parts 1109

[Docket No. EP 734]


Dispute Resolution Procedures Under the Fixing America's Surface 
Transportation Act of 2015

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board) proposes regulations 
to implement passenger rail-related dispute resolution provisions of 
the Fixing America's Surface Transportation Act of 2015.

DATES: Comments on this proposal are due by August 31, 2016; reply 
comments are due by September 30, 2016.

ADDRESSES: Comments may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise 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 filing in the traditional paper format should 
send an original and 10 copies to: Surface Transportation Board, Attn: 
Docket No. EP 734, 395 E Street SW., Washington, DC 20423-0001.
    Copies of written comments received by the Board will be posted to 
the Board's Web site at http://www.stb.dot.gov and will be available 
for viewing and self-copying in the Board's Public Docket Room, Suite 
131, 395 E Street SW., Washington, DC. Copies of the comments will also 
be available (for a fee) by contacting the Board's Chief Records 
Officer at (202) 245-0235 or 395 E Street SW., Washington, DC 20423-
0001.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman, (202) 245-0386. 
Assistance for the hearing impaired is available through Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: Title XI of the Fixing America's Surface 
Transportation Act of 2015 (FAST Act),\1\ entitled ``Passenger Rail 
Reform and Investment Act of 2015,'' adds to the Board's existing 
passenger rail adjudicatory responsibilities related to the National 
Railroad Passenger Corporation (Amtrak). Among other things, Title XI 
includes new provisions involving cost recovery by Amtrak for Amtrak's 
operation of ``state-supported routes'' and for the costs allocated to 
states (including state entities) using the Northeast Corridor rail 
facilities for their commuter rail operations. As relevant here, Title 
XI gives the Board jurisdiction to resolve cost allocation and access 
disputes between Amtrak, the states, and potential non-Amtrak operators 
of intercity passenger rail service.\2\ In this notice, the Board is 
proposing a set of procedural rules for the mediation of passenger rail 
matters arising under Title XI of the FAST Act. Because the Board does 
not presently have in place a general set of procedural rules to govern 
the presentation and conduct of proceedings before the Board involving 
passenger rail matters entrusted to the Board under 49 U.S.C. 24101-
24910,\3\ which would include contested matters arising under Title XI 
of the FAST Act, parties seeking to bring contested matters before the 
Board should be guided by the Board's existing Rules of Practice, as 
applicable.
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    \1\ Fixing America's Surface Transportation Act of 2015, Pub. L. 
114-94 (signed Dec. 4, 2015).
    \2\ Currently, Amtrak is the only operator of regularly 
scheduled, common carrier intercity passenger rail service in the 
United States. Certain statutory provisions contemplate the 
possibility, in the future, of other such intercity passenger rail 
operators. See, e.g., 49 U.S.C. 24711 & 49 U.S.C. 24308(f).
    \3\ See 49 CFR 1100.1 (limiting the scope of the Rules of 
Practice to matters under title 49, subtitle IV of the United States 
Code, 49 U.S.C. 10101 et seq.).
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FAST Act Provisions

    The State-Supported Route Committee. Section 11204 of the FAST Act 
adds a new section to the United States Code: 49 U.S.C. 24712, ``State 
supported routes operated by Amtrak.'' State-supported routes are 
intercity rail passenger routes for which operating and capital costs 
are established and allocated among the states and Amtrak under Section 
209 of the Passenger Rail Investment and Improvement Act of 2008 
(PRIIA).\4\ Under these agreements, Amtrak currently receives funding 
from states and state-related entities to operate routes under 750 
miles in length. New section 24712 establishes a State-Supported Route 
Committee comprising Amtrak, the U.S. Department of Transportation/
Federal Railroad Administration, and states that subsidize state-
supported routes, to implement the cost-allocation methodology 
previously developed under section 209 of PRIIA through negotiation 
between Amtrak and the affected states and approved by the Board. See 
Amtrak's Pet. for Determination of PRIIA Sec. 209 Cost Methodology, FD 
35571 (STB served Mar. 15, 2012). The Committee may also

[[Page 51148]]

amend that cost-allocation methodology. Section 24712(c)(1) gives the 
Board jurisdiction to ``conduct dispute resolution'' pertaining to (1) 
the Committee's rules and procedures, (2) the invoices to be produced 
by Amtrak or reports to be produced by Amtrak or the states as 
described in section 24712(b), and (3) the implementation of or 
compliance with the cost allocation methodology. Section 24712(c)(2) 
requires the Board to establish procedures for resolving such disputes, 
which procedures ``may include provision of professional mediation 
services.''
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    \4\ Public Law 110-432, Section 209; 49 U.S.C. 24101 note.
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    The Northeast Corridor Commission. Section 11305 of the FAST Act, 
which amends 49 U.S.C. 24905, involves the powers and obligations of 
the Northeast Corridor Commission (NEC Commission), created by Congress 
in 2008 as part of PRIIA.\5\ The NEC Commission, composed of voting 
representatives from Amtrak, the U.S. Department of Transportation, and 
the states comprising the Northeast Corridor (including the District of 
Columbia), is responsible for developing and implementing a 
standardized policy for determining and allocating costs, revenues, and 
compensation between Amtrak and the providers of commuter rail 
passenger transportation on the Northeast Corridor. 49 U.S.C. 24905(c).
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    \5\ The NEC Commission was originally established as the 
Northeast Corridor Infrastructure and Operations Advisory 
Commission. See 49 U.S.C. 24905.
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    The FAST Act amends 49 U.S.C. 24905 with respect to the Board's 
role in resolving disputes between Amtrak and the states in determining 
compensation for use of the Northeast Corridor by applying the policy 
approved by the NEC Commission. Under section 24903(c), formerly 
section 24904(c), Congress gave Amtrak the authority to allow freight 
and commuter rail passenger operations over Amtrak's Northeast Corridor 
and laid out the standard for the Board to determine compensation if 
the parties did not reach agreement. The FAST Act creates a new 
subsection, section 24905(c)(4), that permits the NEC Commission, 
Amtrak, or public authorities providing commuter rail passenger 
transportation on the Northeast Corridor to request that the Board 
conduct dispute resolution if a dispute arises over implementation of, 
or compliance with, the NEC Commission's cost allocation policy. The 
new subsection requires the Board to establish procedures for resolving 
such disputes and provides that those procedures ``may include the 
provision of professional mediation services.'' \6\
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    \6\ Section 11307 of the FAST Act, ``Competition,'' adds a new 
section to the United States Code, 49 U.S.C. 24711, establishing a 
pilot program for winning bidders to operate no more than three 
long-distance routes currently operated by Amtrak. Section 24711 
gives the Board jurisdiction over disputes between Amtrak and the 
pilot operator over the price and other terms and conditions of 
access to Amtrak facilities and services that the pilot operator 
claims are required to support the transferred routes, and over 
whether Amtrak's other services would be unreasonably impaired by 
providing such access. If the Board determines that access is 
necessary and would not unreasonably impair Amtrak's other services, 
then the Board is required to determine reasonable compensation to 
be paid to Amtrak and other terms of use and must order Amtrak to 
provide access based on those terms and conditions. 49 U.S.C. 
24711(g). Section 11307, however, does not include a provision like 
those discussed above requiring the Board to establish procedures 
for resolving such disputes and providing that those procedures 
``may include the provision of professional mediation services.''
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The Proposed Rules

    The proposed rules would add to the Board's current mediation rules 
at 49 CFR part 1109 a new Sec.  1109.5 that includes provisions 
specific to the State-Sponsored Route Committee and the Northeast 
Corridor Committee, to implement the FAST Act's directive that 
procedures for resolving certain disputes arising from those committees 
``may include provision of professional mediation services.'' In the 
proposed regulations, parties to a dispute under sections 24712 and 
24905 would be permitted to request, by letter submitted to the Board's 
Office of Public Assistance, Governmental Affairs, and Compliance, the 
Board's informal assistance in securing outside professional mediation 
services in order to resolve certain disputes as set forth in the FAST 
Act, without the necessity of a formal complaint being filed with 
Board.\7\
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    \7\ The proposed mediation procedures originated in the events 
leading up to the FAST Act's creation of the State-Sponsored Route 
Committee. Following the enactment of PRIIA in 2008, and pursuant to 
PRIIA section 209, Amtrak developed a single, nationwide 
standardized methodology for establishing and allocating operating 
and capital costs among the states and Amtrak for all State-
subsidized intercity passenger rail services. Lacking the unanimous 
concurrence of the concerned states, the methodology underwent 
mandatory review by the Board, which found it to be in compliance 
with the PRIIA requirements. Amtrak's Pet. for Determination of 
PRIIA Sec. 209 Cost Methodology, FD 35571 (STB served Mar. 15, 
2012). Thereafter, several issues emerged between Amtrak and the 
states that they were unable to resolve in the course of their good-
faith efforts to implement section 209 and the cost allocation 
methodology. Therefore, in 2014 the Board engaged the Federal 
Mediation and Conciliation Service (FMCS) to organize and facilitate 
focused discussions involving Amtrak and the affected states in an 
effort to resolve outstanding issues informally. In June 2015, the 
parties, with the assistance of the Board-sponsored FMCS 
facilitation team, reached agreement on the creation of a committee 
structure including Amtrak, the Federal Railroad Administration, and 
the affected states, to negotiate and resolve ongoing cost 
allocation issues. That committee was the predecessor of, and model 
for, the State-Sponsored Route Committee established in the FAST Act 
and codified at 49 U.S.C. 24712.
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    The Board invites public comment on any aspect of the procedural 
rules proposed here.
    Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) 
regulations at 5 CFR 1320.8(d)(3), the Board seeks comments regarding: 
(1) Whether the revisions to the collections of information proposed 
here are necessary for the proper performance of the functions of the 
Board, including whether the collection has practical utility; (2) the 
accuracy of the Board's burden assessment; (3) ways to enhance the 
quality, utility, and clarity of the information collected; and (4) 
ways to minimize the burdens of the collections of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology, when appropriate. The proposed 
revisions described in this notice are being submitted to OMB for 
review as required under the PRA, 5 U.S.C. 3507(d) and OMB regulations 
at 5 CFR 1320.11. Comments received by the Board regarding the 
information collection will also be forwarded to OMB for its review 
when the final rule is published.
    Regulatory Flexibility Act Certification. The Regulatory 
Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a 
description and analysis of new rules that would have a significant 
economic impact on a substantial number of small entities. In drafting 
a rule, an agency is required to: (1) Assess the effect that its 
regulation will have on small entities; (2) analyze effective 
alternatives that may minimize a regulation's impact; and (3) make the 
analysis available for public comment. 5 U.S.C. 601-604. In its notice 
of proposed rulemaking, the agency must either include an initial 
regulatory flexibility analysis, section 603(a), or certify that the 
proposed rule would not have a ``significant impact on a substantial 
number of small entities.'' Section 605(b). The impact must be a direct 
impact on small entities ``whose conduct is circumscribed or mandated'' 
by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 
(7th Cir. 2009).
    The proposed regulations would specify procedures related to 
dispute resolution of certain passenger rail transportation matters by 
the Board and

[[Page 51149]]

do not mandate or circumscribe the conduct of small entities. If a 
party wishing to utilize the proposed procedures files a complaint, 
petition, application, or request for dispute resolution, that entity 
will not encounter any additional burden. Rather, the procedures are 
being updated and clarified by the proposed regulations. Therefore, the 
Board certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities 
as defined by the RFA. A copy of this decision will be served upon the 
Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business 
Administration, Washington, DC 20416.

List of Subjects in 49 CFR Part 1109

    Administrative practice and procedure, Maritime carriers, Motor 
carriers, Railroads.
    It is ordered:
    1. Comments on this proposal are due by August 31, 2016; reply 
comments are due by September 30, 2016.
    2. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    3. Notice of this decision will be published in the Federal 
Register.
    4. This decision is effective on its service date.

    Decided: July 28, 2016.
    By the Board, Chairman Elliott, Vice Chairman Miller, and 
Commissioner Begeman.
Kenyatta Clay,
Clearance Clerk.
    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend part 1109 of title 49, chapter 
X, of the Code of Federal Regulations as follows:

PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS

0
1. Revise the authority citation for part 1109 to read as follows:

    Authority:  5 U.S.C. 571 et seq. and 49 U.S.C. 1321(a), 
24712(c), and 24905(c).

0
2. Add Sec.  1109.5 to read as follows:


Sec.  1109.5  Resolution of certain disputes involving the State 
Sponsored Route Committee and the Northeast Corridor Commission.

    (a) In addition to the mediation procedures under this part that 
are available following the filing of a complaint in a proceeding 
before the Board, Amtrak or a State member of the State Supported Route 
Committee established under 49 U.S.C. 24712 may request that the Board 
informally assist in securing outside professional mediation services 
in order to resolve disputes arising from:
    (1) Implementation of, or compliance with, the cost allocation 
methodology for State-Supported Routes developed under section 209 of 
the Passenger Rail Investment and Improvement Act of 2008 or amended 
under 49 U.S.C. 24712(a)(6);
    (2) Invoices or reports provided under 49 U.S.C. 24712(b); or
    (3) Rules and procedures implemented by the State Supported Route 
Committee under 49 U.S.C. 24712(a)(4). Such a request for informal 
assistance in securing outside professional mediation services may be 
submitted to the Board even in the absence of a complaint proceeding 
before the Board.
    (b) In addition to the mediation procedures under this part that 
are available following the filing of a complaint in a proceeding 
before the Board, the Northeast Corridor Commission established under 
49 U.S.C. 24905, Amtrak, or public authorities providing commuter rail 
passenger transportation on the Northeast Corridor may request that the 
Board informally assist in securing outside professional mediation 
services in order to resolve disputes involving implementation of, or 
compliance with, the policy developed under 49 U.S.C. 24905(c)(1). Such 
a request for informal assistance in securing outside professional 
mediation services may be submitted to the Board even in the absence of 
a complaint proceeding before the Board.
    (c) A request for informal Board assistance in securing outside 
professional mediation services under paragraph (a) or (b) of this 
section shall be submitted by letter duly authorized to be submitted to 
the Board by the requesting party. The request letter shall be 
addressed to the Director of the Board's Office of Public Assistance, 
Governmental Affairs, and Compliance, and shall include a concise 
description of the issues for which outside professional mediation 
services are sought. The Office of Public Assistance, Governmental 
Affairs, and Compliance shall contact the requesting party in response 
to such request within 14 days of receipt of the request.

[FR Doc. 2016-18102 Filed 8-2-16; 8:45 am]
 BILLING CODE 4915-01-P