[Federal Register Volume 87, Number 84 (Monday, May 2, 2022)]
[Proposed Rules]
[Pages 25609-25615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09005]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1146
[Docket No. EP 762]
Regulations for Expedited Relief for Service Emergencies
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (STB or Board) proposes to
amend its emergency service regulations. Specifically, the Board
proposes to: Amend procedures for parties seeking a Board order
directing an incumbent carrier to take action to remedy a service
emergency; indicate that the Board may act on its own initiative to
direct emergency service; modify the informational requirements for
parties in emergency service proceedings; shorten the filing deadlines
in emergency service proceedings and establish a timeframe for Board
decisions; and establish an accelerated process for certain acute
service emergencies.
DATES: Comments are due by May 23, 2022. Reply comments are due by June
6, 2022.
ADDRESSES: Comments and replies should be filed with the Board either
via e-filing on the Board's website at www.stb.gov, or in writing
addressed to: Surface Transportation Board, Attn: Docket No. EP 762,
395 E Street SW, Washington, DC 20423-0001. Filings will be posted to
the Board's website.
FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368.
Assistance for the hearing impaired available through the Federal Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: Pursuant to its broad statutory mandate, the
Surface Transportation Board closely monitors the rail industry's
service performance. See 49 U.S.C. 1321, 11145; see also 49 U.S.C.
10101, 11323, 10907. Since late 2013, railroad service challenges
impacting a wide range of geographic regions and commodities have
occurred periodically. See, e.g., U.S. Rail Serv. Issues--Performance
Data Reporting, EP 724 (Sub-No. 4) (STB served Dec. 30, 2014), 80 FR
473 (Jan. 6, 2015); STB Letter to CSX Transp., Inc. Requesting Service
Reporting (July 27, 2017); STB Letter to Union Pac. Corp. Requesting
Service Outlook (Mar. 16, 2018); STB Letter to Union Pac. Corp.
Regarding New Operating Plan (Sept. 20, 2018); Chairman Oberman Letter
to NS Regarding Service Issues (Nov. 23, 2021).
In response to service challenges in recent years, the Board has
held a series of public hearings to permit interested persons to report
on specific service problems, to hear from rail industry executives on
plans to address rail service problems generally, and to explore
additional options to improve service. One such hearing was held in
October 2017 in Washington, DC, at which a number of shippers observed
that the Board's regulations at 49 CFR part 1146 governing expedited
relief for service emergencies are rarely invoked, even in times of
serious rail service challenges. See Pub. Listening Session Regarding
CSX Transp., Inc.'s Rail Serv. Issues, EP 742, Hr'g Tr. 89:13-22; 90:1;
150:3-14; 196:11-22; 197:1-16; 199:1-9 (Oct. 17, 2017).
Based on these concerns and to better understand the reasons for
the lack of use of the Board's directed service regulations, the Board
announced on March 15, 2018, that Board staff would hold informal
meetings with interested persons to discuss and gather feedback on the
adequacy of the Board's current regulations regarding emergency service
and service inadequacies, and whether and how the current regulations
should be modified to offer a more meaningful path to relief. See STB
Press Release, No. 18-2 (Mar. 15, 2018).\1\ As a result, Board staff
met with representatives of a variety of entities representing carrier
and shipper interests in the second quarter of 2018. A recurring
concern expressed by shipper interests was the amount of time it takes
to obtain relief for service failures under the existing procedures and
the difficulty of satisfying certain informational burdens. While
carrier interests acknowledged that very few emergency-service
petitions had been filed, they generally indicated a belief that the
existing procedures were sufficient and that the Board's informal Rail
Customer and Public Assistance program (RCPA) was helpful in resolving
acute service issues.
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\1\ While these meetings also included discussion of 49 CFR part
1147 (Temporary Relief Under 49 U.S.C. 10705 and 11102 for Service
Inadequacies), this proposed rule only concerns part 1146 (Expedited
Relief for Service Emergencies).
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More recently, the Board announced that it would hold a hearing on
April 26 and 27, 2022, on recent rail service problems impacting the
network and the recovery efforts involving several Class I carriers.\2\
As the hearing notice explained, the Board has heard informally from a
broad range of stakeholders about inconsistent and unreliable rail
service throughout the network and across commodity groups. These
challenges include tight car supply and unfilled car orders, delays in
transportation for carload and bulk traffic, increased origin dwell
time for released unit trains, missed switches, and ineffective
customer assistance.\3\ Such service issues, should they continue,
could result in an increased need for emergency Board action to meet
the needs of the public.
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\2\ Press Release, STB, STB Issues Hearing Notice for Urgent
Issues in Freight Rail Service (Apr. 7, 2022).
\3\ In light of the consistent and pervasive nature of these
service issues, the Board is limiting the comment period to 30 days
and the reply period to 15 days rather than the more customary 60-
day comment period and 30-day reply period.
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Based on additional review of the feedback received during hearings
and the informal stakeholder communications, consideration of the
current service problems, and further consideration of the current
regulations, the Board proposes to modify and update its emergency
service rules at 49 CFR part 1146.
Background
Emergency service orders are designed to preserve rail service
where there has been a substantial rail service issue or failure that
requires immediate relief. Under 49 U.S.C. 11123(a), the Board may
issue an emergency service order where there exists ``an emergency
situation of such magnitude as to have substantial adverse effects on
shippers, or on rail service in a region of the United States, or that
a rail carrier . . . cannot transport the traffic offered to it in a
manner that properly serves the public[.]'' \4\ When the Board
determines
[[Page 25610]]
that such a situation exists, it may: ``(1) direct the handling,
routing, and movement of the traffic of a rail carrier and its
distribution over its own or other railroad lines; (2) require joint or
common use of railroad facilities; (3) prescribe temporary through
routes; and (4) give directions for--(A) preference or priority in
transportation; (B) embargoes; or (C) movement of traffic under
permits;'' or, when the service failure is caused by a cessation of
service by Amtrak, direct the continuation of operations and related
functions. Id. The Board may act on its own initiative or pursuant to a
petition, and emergency service may be ordered summarily (i.e., without
regard to the Administrative Procedure Act). Id. section 11123(b)(1).
Board orders under section 11123 are subject to an initial time limit
of 30 days but may be extended up to an additional 240 days if the
Board finds that emergency conditions continue to exist. Id. section
11123(a) & (c).\5\ The Board's existing regulations at part 1146 were
adopted in 1998 following Board hearings held at the request of
Congress to examine issues of rail access and competition in the
railroad industry. See Expedited Relief for Serv. Inadequacies, EP 628
(STB served Dec. 21, 1998), 63 FR 71396 (Dec. 28, 1998).\6\
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\4\ Under the statute, an emergency situation can be created by
``shortage of equipment, congestion of traffic, unauthorized
cessation of operations, failure of existing commuter rail passenger
transportation operations caused by a cessation of service by the
National Railroad Passenger Corporation, or other failure of traffic
movement,'' 49 U.S.C. 11123(a).
\5\ In the case of an alternative carrier providing service over
an incumbent carrier's lines, the rail carriers may establish the
terms of compensation and operations between themselves. The Board
may set compensation if the carriers do not agree. 49 U.S.C.
11123(b)(2).
\6\ In Expedited Relief for Service Inadequacies, the Board also
adopted regulations at part 1147 designed to address service issues
that require longer-term relief. Id. at 6. At this time, the Board
is not proposing modifications to the regulations at part 1147,
which are based on 49 U.S.C. 11102 and 10705 rather than section
11123.
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The current regulations at 49 CFR 1146.1(a) provide, in relevant
part, that a petitioner seeking relief must show a substantial,
measurable service deterioration or other demonstrated inadequacy over
an identified period of time by the incumbent carrier. Any petition for
relief must demonstrate that the standard contained in 49 CFR 1146.1(a)
is met, provide a summary of discussions the petitioner has had with
the incumbent carrier regarding the service problems and the reasons
why the incumbent is unlikely to restore adequate rail service within a
reasonable period of time, and include a commitment from an alternative
carrier to provide service that can be performed safely without
degrading service to existing customers of the alternative carrier and
without unreasonably interfering with the incumbent's overall ability
to provide service.\7\ 49 CFR 1146.1(b). A reply to the petition must
be filed by the incumbent carrier within five business days, and a
rebuttal by the party requesting relief may be filed within three
business days following submission of the reply.
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\7\ Current regulations also require that a petition for relief
include a ``certification of service of the petition, by hand or by
overnight delivery, on the incumbent carrier, the proposed
alternative carrier, and the Federal Railroad Administration.'' 49
CFR 1146.1(b)(1)(iv).
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Proposed Amendments
The proposed amendments, which would change the Board's regulations
at 49 CFR part 1146, are set out below. The amendments aim to address
several concerns with part 1146 that appear to diminish the ability of
stakeholders to invoke the Board's processes when they are most
needed--during service emergencies that require immediate regulatory
intervention. If stakeholders are unable or unwilling to pursue such
remedies due to shortcomings of the current regulatory framework,
unaddressed service emergencies create substantial negative impacts on
the public. As discussed above, proponents of a rule modification have
generally indicated that the current process takes too long and places
burdens on petitioners that are difficult to meet, even when the
emergency is acute.
In proposing these modifications, the Board is mindful that rail
service adequacy is a key part of the Board's mandate. See, e.g., U.S.
Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4), slip
op. at 5 (STB served Nov. 30, 2016), 81 FR 87472 (Dec. 5, 2016) (citing
49 U.S.C. 10101). Pursuant to the rail transportation policy of 49
U.S.C. 10101, in regulating the railroad industry, it is the policy of
the United States Government to promote a safe and efficient rail
transportation system, section 10101(3); ensure the development of a
sound rail transportation system to meet the needs of the public,
section 10101(4); foster sound economic conditions in transportation,
section 10101(5); and provide for the expeditious handling and
resolution of all proceedings, section 10101(15). Poor rail service can
harm productivity in important sectors of the economy and can have
significant ripple effects throughout the rail network, both of which
undermine sound rail transportation and economic conditions. The
proposed rule changes would advance the rail transportation policy
goals by enabling the Board to order temporary relief in emergency
situations more quickly and effectively, to more rapidly ensure that
localized problems do not spread to other parts of the network, and to
give parties involved in emergency situations (both rail carriers and
shippers) more certainty on the resolution of those issues.
Clarifying Remedial Pathways. During the Board's stakeholder
meetings in 2018, several stakeholders expressed uncertainty regarding
whether, under part 1146, the Board can simply direct incumbent
carriers to take particular service actions without involving an
alternative carrier. This uncertainty appears rooted in the fact that
the Board's current regulations focus on the prescription of rail
service by an alternative carrier, requiring that any petition for
relief contain, among other things, ``a commitment from another
available railroad to provide alternative service that would meet
current transportation needs.'' 49 CFR 1146.1(b)(iii). Under 49 U.S.C.
11123, however, the Board is clearly authorized to issue an emergency
service directive without regard to whether an alternative carrier is
available or necessary to remedy the particular issue. See 49 U.S.C.
11123(a)(1) (the Board may direct the handling, routing, and movement
of a rail carrier's traffic over its own lines). Certain circumstances
(e.g., an emergency situation with substantial adverse effects on
shippers caused by a severe and unreasonable delay in the delivery of
railcars that are in the custody of an incumbent carrier) may
necessitate requiring an incumbent carrier to undertake immediate
actions that it has not performed, particularly in situations where
service by an alternative carrier is not a viable option. Indeed, the
Board has in the past issued service orders directed at incumbent
carriers. See, e.g., Canexus Chems. Can. L.P. v. BNSF Ry.--Emergency
Serv. Ord., FD 35524 (STB served Oct. 14, 2011) (requiring incumbents
to maintain service pursuant to section 11123). To address any
confusion regarding this issue, the Board proposes adding language to
49 CFR part 1146 to parallel the statute and indicate that the Board
may direct an incumbent carrier to take action as well as direct an
alternative carrier to provide service.
The Board also proposes adding language to 49 CFR part 1146 to
clarify that it can act on its own initiative as well as pursuant to a
petition. Rail service problems come to the Board's attention in
several ways in addition to by petition, such as through the Board's
review of performance service data submitted by carriers under 49 CFR
part 1250 or stakeholder testimony at
[[Page 25611]]
service-related hearings, and the Board has the express statutory
authority to act on its own initiative when warranted. See 49 U.S.C.
11123(b)(1).
Both of these proposed changes to the Board's emergency service
regulations would better align the Board's regulations with its
statutory authority and provide clarity to stakeholders on the pathway
for seeking relief in emergency situations.
Modifying Petition Requirements. Currently, under 49 CFR
1146.1(b)(1)(iii), a petitioner must have a commitment from another
available railroad to provide alternative service and explain how the
alternative service would be provided safely without degrading service
to the existing customers of the alternative carrier and without
unreasonably interfering with the incumbent's overall ability to
provide service.
Proponents of a rule modification have expressed frustration with
the requirement to secure an alternative carrier in advance (i.e., a
commitment to be included in a petition) during a service emergency.
These proponents report that potential alternative carriers are
reluctant to participate in emergency alternative service (1) because
taking on new business for a short and unknown period of time can be
unattractive financially, (2) for fear of retaliation by the incumbent
carrier (particularly where the alternative carrier is a railroad that
depends on an ongoing working relationship with the incumbent), and (3)
due to uncertainty in ensuring that alternative service can be provided
safely and in accordance with applicable regulations and operating
practices. In the 1998 decision adopting the part 1146 rules, the Board
considered similar concerns but ultimately decided to require the
advance commitment of a willing alternative carrier, on the basis that
to do otherwise ``could create safety concerns, impair service to [the
alternative carrier's] customers, or hurt its finances.'' Expedited
Relief for Serv. Inadequacies, EP 628, slip op. at 11. While the Board
recognizes that these are important considerations, it is more
appropriate for the Board to take any such concerns into account when
considering individual requests for emergency service. Requiring an
advance commitment from an alternative carrier as a condition to filing
an emergency service petition is not a needed burden on petitioners
experiencing a service crisis and undermines the usefulness of this
important statutory remedy.
The Board therefore proposes changes that will ease this burden by
requiring petitioners to submit only a list of possible alternative
carriers, based on the petitioner's understanding of other rail
carriers' nearby operations. This modification would still allow the
Board, with some initial guidance from the petitioner, to determine
whether a suitable alternative carrier may be available based on
individual circumstances, thereby allowing a petitioner to focus on
providing readily available information regarding its service emergency
to the Board as expeditiously as possible. While the informational
burden on the petitioner would be lessened, the Board would encourage
petitioners to include any information available to them that would
assist the Board in determining what, if any, relief is available and
appropriate.
Proponents of a rule modification have also identified challenges
with the requirement that an emergency service petition explain how
alternative service would be provided safely without degrading service
to the existing customers of the alternative carrier and without
unreasonably interfering with the overall ability of the incumbent
carrier and alternative carrier, if any, to provide service, given that
such information is entirely within the control of the alternative and
incumbent carriers. Some proponents also suggested that requiring the
petition to explain the reasons why the incumbent carrier is unlikely
to restore adequate rail service within a reasonable period of time
poses too onerous a burden. The Board is proposing changes to these
requirements. First, as discussed below, the Board proposes to require
the incumbent carrier and alternative carriers, if any, to address, in
the first instance, whether the proposed remedy would substantially
impair their ability to serve their customers adequately or fulfill
their common carrier obligations. Second, with regard to the required
explanation of reasons why the incumbent carrier is unlikely to restore
rail service, the Board proposes to clarify that the explanation need
only take the form of a ``summary'' to the extent that such information
is available to the petitioner.
The Board proposes these changes because it agrees that the current
regulations do not place the informational requirements on the parties
most likely to have the information. Given that these proceedings occur
on an emergency, expedited basis without traditional discovery,
requiring the petitioner to provide detailed information at the outset
of a matter could limit access to the Board. Accordingly, because
operational information of the incumbent carrier is not readily
accessible to a petitioner, and because relevant facts in this regard
will be within the incumbent carrier's control, the Board proposes
requiring the incumbent carrier to address in its reply whether, and if
so, why, the remedy proposed by the petitioner would be unsafe or
infeasible or will substantially impair the incumbent's ability to
serve its other customers or fulfill its common carrier obligations.
For the same reasons, the proposed rule would allow any identified
possible alternative carrier to file a reply to the emergency service
petition and would require such filings to set forth any known problems
or concerns perceived by the possible alternative carrier regarding the
alternative service.\8\ These changes would allow the entity with the
most knowledge about its operations to explain to the Board why a
proposal regarding its operations is unsafe or infeasible, or would
unreasonably impair its ability to serve other customers or fulfill its
common carrier obligations.
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\8\ Should it need information from any possible alternative
carrier that does not file a reply, the Board will take appropriate
action, including directly contacting possible alternative carriers
to request such information.
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Modifying the Regulatory Timeframe. Stakeholders have also
expressed concern about the overall length of the process set forth in
part 1146, as well as the lack of a date certain by which a Board
decision can be expected, both of which the Board agrees can be
detrimental to a petitioner's business planning in the midst of a
service emergency. See, e.g., Pub. Listening Session Regarding CSX
Transp. Rail Serv. Issues, EP 742, Tr. 89-90, 199, Oct. 11, 2017.
Therefore, in order to resolve emergency service matters more
efficiently and expeditiously, the Board proposes (1) shortening the
filing deadlines set forth in part 1146 and (2) establishing a target
timeframe for a Board decision on the petition. The reply period for an
incumbent or any alternative carrier to respond to a petition under
Sec. 1146.1(b)(2) would be reduced from five business days to three,
and the rebuttal period under Sec. 1146.1(b)(3) would be reduced from
three business days to two. Additionally, the Board proposes language
stating that it expects to issue a decision within five business days
after receiving the rebuttal. By shortening the timeframe and
indicating when the parties can expect a decision by the Board, the
proposed amendments would further streamline the process for
[[Page 25612]]
all parties involved in an emergency service proceeding.
Establishing an Accelerated Process to Handle Acute Service
Emergencies. The most serious issue identified by stakeholders was the
timeliness of regulatory action in situations involving acute service
emergencies, such as those involving public health or safety issues and
imminent and extended potential plant shutdowns. In an effort to more
efficiently address the most urgent service emergencies in a more
expeditious manner, the Board proposes to establish an accelerated
process for certain acute service emergencies that present potential
imminent harm and threaten potentially severe adverse consequences to
the petitioner, its customers, or the public. Such emergencies would
arise when there is a clear and present threat to public health,
safety, or food security, or a high probability of business closures or
immediate and extended plant shutdowns.
The Board seeks comment on a separate accelerated process, set out
below in proposed new Sec. 1146.2, whereby a petitioner seeking
accelerated relief must indicate that the petitioner is seeking such
relief pursuant to that process, include a description of specific and
particularized actions that can be performed by the incumbent or an
alternative carrier and ordered by the Board,\9\ and demonstrate that
the described emergency presents an imminent significant harm and
threatens potentially severe adverse consequences to the petitioner,
its customers, or the public. To satisfy this standard, the petitioner
must demonstrate that the alleged harm will occur before any relief
could be ordered under Sec. 1146.1 and that any relief ordered by the
Board pursuant to Sec. 1146.1 would be rendered ineffective. As noted
above, such severe adverse circumstances exist when there is a clear
and present threat to public health, safety, or food security, or a
high probability of business closures or immediate and extended plant
shutdowns.
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\9\ The statute limits the Board's emergency service authority
to the actions enumerated in 49 U.S.C. 11123(a), which are listed
above. Accordingly, any relief ordered through the accelerated
process must be one of the actions listed in the statute.
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The petition must also include a description of any efforts taken
to resolve the issue through others means, such as utilizing the
Board's rail customer and public assistance program (RCPA) or direct
discussions with the incumbent railroad. The description must be
verified by a person (or persons) with firsthand knowledge of the
efforts. In this regard, the newly proposed accelerated process would
not be intended to supplant the informal assistance readily available
through the RCPA office. The RCPA program offers stakeholders a fee-
free and confidential forum through which they can resolve disputes.
The Board finds that RCPA has been quite effective in working directly
with railroads to resolve critical-need situations. It may be the case
that a stakeholder has availed itself of the auspices of the RCPA
program but has been unable to secure a resolution of its problem,
necessitating its pursuit of formal recourse before the Board.
Nonetheless, the Board is concerned with the effects of an accelerated
process on the Board's informal dispute resolution processes, and it
proposes a requirement that a petitioner make a good faith effort to
informal dispute resolution prior to filing.
Under Sec. 1146.2, a petition would be limited in length to three
substantive pages (not including cover page, verifications, or
certificate of service). The petitioner would be allowed the
opportunity during a telephonic or virtual hearing to present further
evidence in support of its petition.
A petition seeking accelerated relief would be assigned to a
designated Board Member for initial resolution. The designation of
which Board Member would evaluate any petition submitted under the
accelerated process would rotate on a quarterly basis. If the
designated Board Member is unavailable, the next Board Member in the
rotation would be assigned to evaluate the petition. Upon receipt of
the petition for accelerated relief by the designated Board Member, the
Board would notify the parties regarding a telephonic or virtual
hearing to be held no sooner than 24 hours after receipt of the filing,
but no later than 48 hours after receipt of the filing or as soon
thereafter as logistically possible. Given the accelerated process,
oral replies to the petition would occur during the hearing and there
would be no period designated in the schedule for written replies,
although the rule contemplates that the Board Member may order the
carriers to submit, or the carriers may voluntarily submit, an
alternative plan to address the emergency situation within 24 hours of
the hearing. The Board expects that the designated Board Member would
issue an initial decision on the merits of the petition requesting
accelerated relief within two business days after completion of the
hearing.
An initial decision on the merits of the petition requesting
accelerated relief issued by the designated Board Member may be
appealed to the entire Board pursuant to 49 CFR 1115.2. An appeal will
not stay the effectiveness of the initial decision, but the Board
proposes to expedite its appellate timeframe and require any petition
for a stay of the initial decision to be filed concurrently with the
appeal. The record of this new proceeding would include the
confidential, unredacted recording of the hearing from the accelerated
proceeding.
The Board has concerns as to whether an accelerated process would
allow the Board sufficient information by which to ascertain whether
its order would impair substantially the ability of a rail carrier to
serve its own customers adequately, or to fulfill its common carrier
obligations. 49 U.S.C. 11101, 11123(c)(2). As such, the Board is
proposing a requirement that any relief clearly avoid any substantial
impairment of the ability of a rail carrier to serve its own customers
adequately, or to fulfill its common carrier obligations. The Board
will not award relief unless it is clear, based on the limited record,
that it will not have an overall negative affect on shippers and that
it will avoid any risk of placing other shippers in similar
circumstances as petitioner. Given the accelerated nature of this
process, the Board also proposes a time limit for relief of 20 days.
This should provide sufficient time to allow petitioners to file a case
under 49 CFR 1146.1, which would involve a more extended evidentiary
process, for relief in effect up to 240 days, if necessary.
If an accelerated petition is denied for failure to satisfy the
standard for accelerated relief, the petitioner may choose to appeal
that ruling to the entire Board, or the petitioner may file a new
petition pursuant to 49 CFR 1146.1 regarding the same service
emergency.
The Board believes that this proposed accelerated process will
improve and streamline the petition process to address the most
critical service emergencies and strikes an appropriate balance between
the need to act quickly in such situations and maintaining adequate due
process for the involved carriers, but the Board specifically seeks
comment on changes to the proposed regulations to afford carriers the
opportunity to provide information on the effects on their networks
while maintaining the accelerated nature of the process.
Regulatory Flexibility Act
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 of a substantial
[[Page 25613]]
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.
Sections 601-604. In its notice of proposed rulemaking, the agency must
either include an initial regulatory flexibility analysis, 603(a), or
certify that the proposed rule would not have a ``significant impact on
a substantial number of small entities,'' section 605(b).
Because the goal of the RFA is to reduce the cost to small entities
of complying with Federal regulations, the RFA requires an agency to
perform a regulatory flexibility analysis of small entity impacts only
when a rule directly regulates those entities. In other words, 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 Board's proposed changes to its regulations here are intended
to improve and expedite its directed service procedures and do not
mandate or circumscribe the conduct of small entities. For the purpose
of RFA analysis for rail carriers subject to the Board's jurisdiction,
the Board defines a ``small business'' as only including those rail
carriers classified as Class III rail carriers under 49 CFR part 1201,
General Instruction 1-1. See Small Entity Size Standards Under the
Regul. Flexibility Act, EP 719 (STB served June 30, 2016), 81 FR 42566
(June 30, 2016).\10\ The changes proposed here are largely procedural
and would not have a significant economic impact on the Class III rail
carriers to which the RFA applies. Affected shippers or railroads may
seek the relief under part 1146 and the proposed changes, if
promulgated, would enable the Board to provide temporary relief from
serious, localized service problems more quickly and effectively.
Therefore, the Board certifies under 5 U.S.C. 605(b) that these
proposed rules, if promulgated, would not have a significant economic
impact on a substantial number of small entities within the meaning of
RFA. The proposed rules, if promulgated, would modify and clarify its
regulations regarding directed service procedures.
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\10\ Class III carriers have annual operating revenues of $40.4
million or less in 2019 dollars. Class II rail carriers have annual
operating revenues of less than $900 million but more than $40.4
million in 2019 dollars. The Board calculates the revenue deflator
factor annually and publishes the railroad revenue thresholds in
decisions and on its website. 49 CFR part 1201, General Instruction
1-1; Indexing the Annual Operating Revenues of R.Rs., EP 748 (STB
served July 12, 2021), 86 FR 36590 (July 12, 2021).
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Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521,
Office of Management and Budget (OMB) regulations at 5 CFR
1320.8(d)(3), and in the Appendix, the Board seeks comments about the
impact of the collection for the Directed Service Regulations (OMB
Control No. 2140-XXXX), concerning: (1) Whether the collections of
information, as added in the proposed rule, and further described
below, are necessary for the proper performance of the functions of the
Board, including whether the collections have practical utility; (2)
the accuracy of the Board's burden estimates; (3) ways to enhance the
quality, utility, and clarity of the information collected; and (4)
ways to minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology, when appropriate.
The Board estimates that the proposed requirements would have a
total hourly burden of 2,710 hours. There are no non-hourly burdens
associated with these collections. The Board welcomes comment on the
estimates of actual time and costs of the collection of (a) petition
for relief (b) petition to terminate relief, (c) petition for
accelerated relief, (d) appeal to entire board, and (e) stay of relief,
as detailed in the Appendix. Other information pertinent to these
collections is also included in the Appendix. The proposed rule will be
submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5
CFR 1320.11. Comments received by the Board regarding these information
collections will be forwarded to OMB for its review when the final rule
is published.
It is ordered:
1. The Board proposes to amend its rules as set forth in this
decision. Notice of the proposed rules will be published in the Federal
Register.
2. Comments are due by May 23, 2022. Reply comments are due by June
6, 2022.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
4. This decision is effective on its service date.
Decided: April 22, 2022.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend title 49, chapter X, part 1146
of the Code of Federal Regulations as follows:
PART 1146--EXPEDITED RELIEF FOR SERVICE EMERGENCIES
0
1. The authority citation for part 1146 continues to read as follows:
Authority: 49 U.S.C. 1321, 11101, and 11123.
0
2. Revise Sec. 1146.1 to read as follows:
Sec. 1146.1 Prescription of alternative rail service or directed
action by an incumbent carrier.
(a) General. Alternative rail service, or directed action by an
incumbent carrier, will be prescribed under 49 U.S.C. 11123(a) if the
Board determines that, over an identified period of time, there has
been a substantial, measurable deterioration or other demonstrated
inadequacy in rail service provided by the incumbent carrier. In
prescribing the relief described in this part, the Board may act on its
own initiative or pursuant to a petition.
(b) Procedures--(1) Petition for relief. Affected shippers or
railroads may seek the relief described in paragraph (a) of this
section by filing an appropriate petition containing:
(i) A full explanation, together with all supporting evidence, to
demonstrate that the standard for relief contained in paragraph (a) of
this section is met;
(ii) A summary of both the petitioner's discussions with the
incumbent carrier of the service problems and the reasons why the
incumbent carrier is unlikely to restore adequate rail service
consistent with the petitioner's current transportation needs within a
reasonable period of time;
(iii) In a petition that seeks alternative rail service,
identification of at least one possible rail carrier to provide
alternative service, based on the petitioner's understanding of other
rail carriers' nearby operations, that would meet the current
transportation needs of the petitioner;
(iv) A detailed explanation of the specific remedy that is being
sought; and
(v) A certification of service of the petition, by hand or by
overnight delivery, on the incumbent carrier, any proposed alternative
carrier, and the Federal Railroad Administration.
(2) Reply. The incumbent carrier must, and any proposed alternative
[[Page 25614]]
carrier may, file a reply to a petition under this paragraph (b) within
three (3) business days. If applicable, any reply should address
whether the specific remedy proposed by the petitioner would be unsafe,
or infeasible, or would substantially impair the replying carrier's
ability to serve its other customers adequately or fulfill its common
carrier obligations.
(3) Rebuttal. The party requesting relief may file rebuttal no more
than two (2) business days after the reply is filed.
(4) Board decision. The Board will endeavor to issue a decision
five (5) business days after receiving the rebuttal or time has expired
for the party requesting relief to file a rebuttal, whichever is
earlier.
(c) Presumption of continuing need. Unless otherwise indicated in
the Board's order, a Board order issued under paragraph (a) of this
section shall establish a rebuttable presumption that the
transportation emergency will continue for more than 30 days from the
date of that order.
(d) Termination of relief--(1) Petition to terminate relief. Should
the Board prescribe alternative rail service under paragraph (a) of
this section the incumbent carrier may subsequently file a petition to
terminate that relief. Such a petition shall contain a full
explanation, together with all supporting evidence, to demonstrate that
the carrier is providing, or is prepared to provide, adequate service.
Carriers are admonished not to file such a petition prematurely.
(2) Reply. Parties must file replies to petitions to terminate
filed under this paragraph (d) within five (5) business days.
(3) Rebuttal. The incumbent carrier may file any rebuttal no more
than three (3) business days later.
(e) Service. All pleadings under this part shall be served by e-
filing on the Board's website, by hand, or overnight delivery on the
Board, the other parties, including any proposed alternative carrier,
and the Federal Railroad Administration. Decisions issued on the
Board's own motion shall also be served by hand or overnight delivery
on the Federal Railroad Administration by the Board.
0
3. Add Sec. 1146.2 to read as follows:
Sec. 1146.2 Accelerated process.
(a) Accelerated process. After making a good faith effort to
resolve its service issue through an informal dispute resolution
process or service of the Board, affected shippers or railroads may
seek accelerated temporary interim relief for substantial, measurable
deterioration or other demonstrated inadequacy in rail service provided
by the incumbent carrier that presents potential imminent significant
harm and threatens potentially severe adverse consequences to the
petitioner, its customers, or the public. Such emergencies exist when
there is a clear and present threat to public health, safety, or food
security, or a high probability of business closures or immediate and
extended plant shutdowns. The timing of such potential harm and
consequences must render potential relief under Sec. 1146.1
ineffective. The relief requested must clearly avoid any substantial
impairment of the ability of a rail carrier to serve its own customers
adequately, or to fulfill its common carrier obligations.
(1) Standard. A petitioner seeking accelerated relief must indicate
in its petition that it is seeking such relief pursuant to this
paragraph (a) and must demonstrate circumstances that meet the standard
set forth in this paragraph (a). The petition must include a
description of specific and particularized action that could be
performed by the incumbent or an alternative carrier and ordered by the
Board. The petition must also include a summary description of the
efforts taken to resolve the matter prior to filing the petition. The
description must be verified by a person or persons with knowledge of
the efforts taken to resolve the matter. The petition must include
contact information for the incumbent carrier. The petition will be
limited to three (3) substantive pages, not including the cover page,
verifications, or certificate of service.
(2) Hearing. When the Board receives a petition seeking accelerated
relief under this paragraph (a), the petition will be assigned to a
designated Board Member to be evaluated on its merits. The designation
of which Board Member will evaluate the petition under the accelerated
process will rotate on a quarterly basis. If a petition is filed and
the designated Board Member is unavailable to evaluate the petition,
the next Board Member in the rotation will evaluate the petition.
(i) After the designated Board Member receives the petition for
accelerated relief, a telephonic or virtual hearing will be held no
sooner than 24 hours after receipt of the filing, but no later than 48
hours after receipt of the filing, if practicable.
(ii) Required parties for the hearing include the petitioner(s),
the incumbent carrier, any potential alternative carriers, and any
other parties deemed necessary by the designated Board Member. The
designated Board Member may deem that portions of the hearing will be
closed to certain parties if confidential business information needs to
be discussed. The hearing will be recorded and later transcribed (with
redactions, if necessary), and placed in the public docket of the
proceeding.
(iii) If applicable, the incumbent carrier shall address at the
hearing whether the remedy proposed by the petitioner is unsafe,
infeasible, or will unreasonably impair the replying carrier's ability
to serve other customers. The Board Member may order the incumbent
carrier to submit, or if no such order is issued, the incumbent carrier
may choose to submit, within 24 hours of the completion of the hearing,
an alternative service plan for the Board Member to consider. The Board
Member may choose to receive such information either via written
submission or a second virtual or telephonic hearing, if practicable.
(3) Board decision. The designated Board Member will endeavor to
issue an initial decision on the merits of the petition requesting
accelerated relief within two (2) business days of the completion of
the hearing. The Board Member shall not award relief for more than 20
days.
(b) Right to appeal. After the designated Board Member issues an
initial decision on the merits of the petition requesting accelerated
relief, the decision can be appealed to the entire Board. The appellate
record is to include any filings by the parties in the proceeding and
the unredacted recording of the hearing. The appeal will be subject to
49 CFR 1115.2 except that the filing of an appeal will not stay the
effect of the initial decision, and appeals must be filed within five
(5) days after the service date of the decision or within any further
period the Board may authorize; and replies must be filed within five
(5) days of the date the appeal is filed.
(c) Stay of relief. Parties seeking a stay of the relief issued by
the designated Board Member must concurrently file an appeal of the
decision and a petition to stay.
(d) Exempted from 49 CFR part 1116. The accelerated petition
process under Sec. 1146.1(c) is exempted from 49 CFR part 1116.
(e) Service. All pleadings under this part shall be served by e-
filing on the Board's website, by hand, or overnight delivery on the
Board, the other parties, and the Federal Railroad Administration. All
pleadings under this part shall also be emailed to
[email protected].
Note: The following appendix will not appear in the Code of
Federal Regulations.
[[Page 25615]]
Appendix
Information Collection Under the Paperwork Reduction Act
As part of its continuing effort to reduce paperwork burdens,
and as required by the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501-3521, the Surface Transportation Board (Board) gives
notice that it is requesting from the Office of Management and
Budget (OMB) approval for the information collection, Directed
Service Regulations, encompassing (a) petition for relief (b)
petition to terminate relief, (c) petition for accelerated relief,
(d) appeal to entire board, and (e) stay of relief. The proposed new
collection necessitated by this notice of proposed rulemaking is
expected to provide parties with additional options for resolution
of smaller rail rate disputes and will further the Board's policy
favoring the use of mediation and arbitration procedures.
Description of Collection
Title: Directed Service Regulations.
OMB Control Number: 2140-XXXX.
STB Form Number: None.
Type of Review: Collection without an OMB Control Number.
Respondents: Parties seeking to have the Board direct rail
service and rail carriers relating to such service.
Number of Respondents: 30.
Estimated Time per Response:
Estimated Hours per Response
------------------------------------------------------------------------
Number of
Type of filing hours per
response
------------------------------------------------------------------------
Petition for Relief..................................... 140
Petition to Terminate Relief............................ 50
Petition (accelerated relief)........................... 70
Appeal to Entire Board.................................. 50
Stay of Relief.......................................... 40
------------------------------------------------------------------------
Frequency: On occasion.
Estimated Average Annual Number of Responses
------------------------------------------------------------------------
Number of
Type of filing responses
------------------------------------------------------------------------
Petition for Relief..................................... 10
Petition to Terminate Relief............................ 2
Petition (accelerated relief)........................... 12
Appeal to Entire Board.................................. 5
Stay of Relief.......................................... 3
------------------------------------------------------------------------
Total Burden Hours (annually including all respondents): 2,710
(sum of estimated hours per response x number of annual responses
for each type of filing).
Total Annual Burden Hours
----------------------------------------------------------------------------------------------------------------
Hours per Annual number Total annual
Type of filing response of filings burden hours
----------------------------------------------------------------------------------------------------------------
Petition for Relief............................................. 140 10 1,400
Petition to Terminate Relief.................................... 50 2 100
Petition (accelerated relief)................................... 70 12 840
Appeal to Entire Board.......................................... 50 5 250
Stay of Relief.................................................. 40 3 120
-----------------------------------------------
Total Annual Burden Hours................................... .............. .............. 2,710
----------------------------------------------------------------------------------------------------------------
Total Annual ``Non-hour Burden'' Cost: There are no non-hourly
burden costs for this collection. The itemized collections may be
filed electronically.
Needs and Uses: Under the Interstate Commerce Act, as amended by
the ICC Termination Act of 1995, the Board is responsible for the
economic regulation of common carrier rail transportation. Under 49
CFR part 1146, and as described in detail above, affected shippers
or railroads may file a petition for relief before the Board when
there has been a substantial, measurable deterioration or other
demonstrated inadequacy in rail service provided by the incumbent
carrier. It must include a full explanation and supporting evidence,
a summary of discussion with the incumbent carrier and why it is
unlikely to restore adequate service, identification of alternative
rail service (if sought), the specific and detailed remedy being
sought, and certification of service. If the Board prescribes
alternative rail service, then the incumbent carrier may file a
petition to terminate that relief, containing a full explanation
with supporting evidence that it is providing adequate service.
In addition to the petition for relief, affected shippers or
railroads may seek accelerated temporary interim relief for
substantial, measurable deterioration or other demonstrated
inadequacy in rail service provided by the incumbent carrier that
presents imminent significant harm and threatens potentially severe
adverse consequences. This petition for accelerated relief must
contain the specific action that could be performed by the incumbent
or an alternative carrier and the efforts taken to resolve the
matter (all limited to three substantive pages). Once received, a
Board Member will be designated to evaluate the petition's merits
and a telephonic hearing will be held with the parties and the Board
Member will make an initial decision on the petition. A party may
then file an appeal of the initial decision to the entire Board.
Finally, because the appeal will not stay the relief granted in the
initial decision, a party may file for a stay of the relief. All
filings must be served on the other parties. These are the steps
that provide for the collection of information under the PRA.
[FR Doc. 2022-09005 Filed 4-29-22; 8:45 am]
BILLING CODE 4915-01-P