[Federal Register Volume 75, Number 153 (Tuesday, August 10, 2010)]
[Notices]
[Pages 48409-48410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19645]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. EP 698]
Establishment of the Toxic by Inhalation Hazard Common Carrier
Transportation Advisory Committee
AGENCY: Surface Transportation Board.
ACTION: Notice of establishment of the Toxic by Inhalation Hazard
Common Carrier Transportation Advisory Committee.
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SUMMARY: As required by Sec. 9(a)(2) of the Federal Advisory Committee
Act (FACA), 5 U.S.C. app., the Surface Transportation Board hereby
gives notice that, following consultation with the General Services
Administration, the Board will create the Toxic by Inhalation Hazard
Common Carrier Transportation Advisory Committee (TIHCCTAC), to provide
independent advice and policy suggestions to the Board on issues
related to the common carrier obligation with respect to the rail
transportation of toxic by inhalation hazards (TIH), and specifically,
to outline what is a railroad's reasonable response to a shipper's
request that it transport TIH cargo. The TIHCCTAC will convene for a
two-year period during which the Board anticipates it will produce a
report that will include a recommended policy statement for further
consideration by the Board. The Board may renew the TIHCCTAC charter if
the Board deems it advisable. This notice seeks comments on the
proposed TIHCCTAC structure, as outlined below. It also requests
nominations for members of the TIHCCTAC.
In the context of its proposed structure, outlined below, the Board
seeks input from interested persons on a number of issues, including:
(1) What should be the appropriate scope of such a committee's mandate?
(2) How would the scope of the committee's mandate affect its utility?
(3) What would be the optimum size of such a committee? and (4) How
should the committee's membership be allocated among various
stakeholder groups to achieve a fairly balanced ``cross section of
those directly affected, interested, and qualified,'' as required under
FACA, 41 CFR 102-3.60(b)(3).
DATES: Comments regarding the proposed TIHCCTAC structure and scope
must be received by 5 p.m. E.D.T., Friday, September 24, 2010.
Nominations for members must be received by 5 p.m. E.D.T., Monday,
October 25, 2010.
ADDRESSES: All comments and nominations should be submitted to the
Board, and may be submitted either via the Board's e-filing format or
in the traditional paper format. Any person using e-filing should
comply with the instructions at the E-FILING link on the Board's Web
site, at http://www.stb.dot.gov. Any person submitting a nomination in
the traditional paper format should send an original and 10 copies to:
Surface Transportation Board, Attn: STB Ex Parte No. 698, 395 E Street,
SW., Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Ronald Molteni, Office of the General
Counsel, at 202-245-0267. [Assistance for the hearing impaired is
available through the Federal Information Relay Service (FIRS) at 1-
800-877-8339.]
SUPPLEMENTARY INFORMATION: The Board, created by Congress in 1996 to
take over many of the functions previously performed by the Interstate
Commerce Commission, exercises broad authority over transportation by
rail carriers, including regulation of railroad rates and service (49
U.S.C. 10701-10747, 11101-11124), as well as the construction,
acquisition, operation, and abandonment of rail lines (49 U.S.C. 10901-
10907) and railroad line sales, consolidations, mergers, and common
control arrangements (49 U.S.C. 10902, 11323-11327). As part of its
regulatory function, the Board oversees the common carrier obligation.
The common carrier obligation refers to the statutory duty of
railroads to provide ``transportation or service on reasonable
request.'' 49 U.S.C. 11101(a). A railroad may not refuse to provide
service merely because to do so would be inconvenient or unprofitable.
G.S. Roofing Prods. Co. v. STB, 143 F.3d 387, 391 (8th Cir. 1998). The
common carrier obligation, however, is not absolute, and service
requests must be reasonable. Id. In recent years, the Board has seen an
increasing number of questions arising, both formally and informally,
regarding the extent of a railroad's common carrier obligation. As a
result, in its docket styled, Common Carrier Obligation of Railroads,
EP 677, the Board held a hearing on April 24-25, 2008, to hear comments
from interested parties on the common carrier obligation and to provide
a forum for discussion of that obligation.
That hearing raised issues involving the obligation of railroads to
haul hazardous materials, including toxic by inhalation hazards. For
many hazardous materials, including TIH, rail is the safest and most
efficient mode of transportation. But, according to the railroads, the
transportation of these materials subjects them to the potential for
extremely high liability in the event of an accident.
Consequently, to allow a more detailed discussion, the Board opened
another docket styled, Common Carrier Obligation of Railroads--
Transportation of Hazardous Materials, EP 677 (Sub-No. 1), and held a
hearing on July 22, 2008, to further explore the issues surrounding the
transportation of hazardous materials by rail. At that hearing, the
Board heard testimony that touched on, among other things, specific
potential policy solutions to the liability concern.
In EP 677 (Sub-No. 1), the Board invited parties to comment on what
constitutes a reasonable request for service involving the movement of
TIH, as well as whether there are unique costs associated with the
transportation of hazardous materials, and if so, how railroads recover
those costs.
The American Association of Railroads (AAR) suggested that the
Board adopt the following policy statement:
It would not be an unreasonable practice for a rail carrier,
under the provisions of 49 U.S.C. 11101(a) and 49 U.S.C. 10702, to
require (if it elected to), as a condition of providing common
carrier transportation
[[Page 48410]]
services, that a TIH materials shipper indemnify and hold harmless
the railroad against liability arising from a release of such
materials in excess of (1) the maximum amount of insurance that the
railroad carries for TIH transport or (2) $500 million for Class I
railroads, whichever is greater; and to provide reasonable
assurances in the form of insurance or other means to support such
indemnity.\1\
\1\ AAR Comments, EP 677 (Sub-No. 1) at 24.
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Other commentators, particularly those representing TIH shippers'
interests, urged the Board to reject this proposed policy statement.
But some, while lamenting escalating rates they believe are priced to
drive TIH off the railroads, expressed a willingness to explore
allocations of excess liability insurance to cover a limited scope of
occurrences while not reducing a railroad's incentive to prudently and
safely handle and transport TIH.
While the Board views the safe transportation of hazardous
materials as crucial to this nation's economic and national security,
and the transportation by rail of hazardous materials as vital to our
nation's industrial production, the Board is an economic regulator,
and, as such, seeks to address the economic component of TIH transport.
It hopes to facilitate dialogue regarding and resolution of those
economic concerns between and among TIH shippers and the railroads.
The Board believes that an industry-derived solution to the
question of what constitutes a reasonable response to a shipper's
request that a railroad transport TIH cargo might be a better and
potentially more economically sustainable solution than a Board-imposed
solution, though the latter remains a lawful alternative in the absence
of industry-wide consensus. Accordingly, the Board will place in
abeyance docket EP 677 (Sub-No. 1) and will not rule on the railroad
industry's proposed policy statement at this time. Instead, the Board
proposes to establish the TIHCCTAC to provide independent advice and
policy recommendations to the Board. TIHCCTAC will be directed to
provide advice on issues pertaining to the common carrier obligation
with respect to the rail transportation of TIH, and specifically, the
question of what is a railroad's reasonable response to such a request.
The Board anticipates that the TIHCCTAC will consist of a balanced
cross-section of members at the general counsel or vice president level
of stakeholders involved in the rail transportation of TIH, including
but not limited to railroads, TIH shippers, insurers or underwriters,
and tank car owners, lessors, or manufacturers.
The TIHCCTAC will be tasked with producing a report and
recommendations on how the Board should balance the common carrier
obligation to transport this commodity with the risk of catastrophic
liability in setting appropriate rail transportation liability terms
for TIH cargo. The TIHCCTAC's focus and its solution to the question
presented above should revolve around the amount of economic
responsibility for liability that railroads can reasonably ask TIH
shippers to assume before the carrier will transport TIH cargo. The
TIHCCTAC shall function solely as an advisory body and will comply with
the provisions of FACA and its implementing regulations.
For the purpose of soliciting comments, the Board proposes the
following structure. The TIHCCTAC shall consist of up to 27 voting
members, including its chair. Members of the TIHCCTAC will be chosen by
the Chairman of the STB and shall include at a minimum: 7
representatives from the Class I and II railroads; 3 representatives
from Class III railroads; 5 representatives from chlorine shippers; 5
representatives from anhydrous ammonia shippers; 4 representatives
currently engaged in academia or policy analysis; 2 representatives
with an insurance or underwriting background; and 1 representative from
tank car owners, car lessors, or car manufacturers. The 3 members of
the Board shall serve as ex officio (non-voting) members of the
Committee. In addition to the members described above, the Chairman of
the STB may invite representatives from the U.S. Departments of
Homeland Security and Transportation (including their affiliated
agencies) to serve the TIHCCTAC in advisory capacities as ex officio
(non-voting) members. The Chairman of the STB will appoint the
TIHCCTAC's chair. The Chairman of the STB may constitute an executive
committee and subcommittees as necessary for the TIHCCTAC to discharge
its responsibilities. The Board contemplates a voting structure that
will provide each voting member with a vote. But, for any proposal to
become a recommendation of the TIHCCTAC, a majority vote of the
railroad interests and a majority vote of the shipping interests will
be required.
The TIHCCTAC will meet monthly with an anticipatory commencement in
the final quarter of 2010, after it has been established in compliance
with FACA. No honoraria, salaries, travel or per diem are available to
members of the TIHCCTAC; however, reimbursement for travel expenses may
be sought from the Board in cases of hardship.
Chairman Elliott will appoint Ronald Molteni of the Board's Office
of General Counsel to serve as the Designated Federal Official--the
agency's liaison to the TIHCCTAC.
Suggestions for members of the TIHCCTAC should be submitted in
letter form, identifying the name of the candidate; evidence of the
interests the candidate will represent; and a representation that the
candidate is willing to serve a two-year term as a member of the
TIHCCTAC, with the possible charter renewal leading to a potential
second term.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Authority: 49 U.S.C. 721, 49 U.S.C. 11101; 49 U.S.C. 11121.
Decided: July 30, 2010.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Nottingham.
Kulunie L. Cannon,
Clearance Clerk.
[FR Doc. 2010-19645 Filed 8-9-10; 8:45 am]
BILLING CODE 4915-01-P