[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66187-66188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27104]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. EP 704]
Review of Commodity, Boxcar, and TOFC/COFC Exemptions
AGENCY: Surface Transportation Board, DOT.
ACTION: Notice.
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SUMMARY: The Surface Transportation Board (Board) will hold a public
hearing beginning at 9:30 a.m. on December 9, 2010, in the Hearing Room
on the first floor of the Board's headquarters in Washington, DC. The
purpose of the public hearing will be to review certain categorical
exemptions from regulation under 49 U.S.C. 10502, specifically the
commodity exemptions under 49 CFR 1039.10 and 1039.11, the boxcar
exemptions under 49 CFR 1039.14, and trailer-on-flatcar/container-on-
flatcar (TOFC/COFC) exemptions under 49 CFR part 1090. Persons wishing
to speak at the hearing should notify the Board in writing.
DATES: The public hearing will take place on December 9, 2010. Any
person wishing to speak at the hearing should file with the Board a
combined notice of intent to participate (identifying the party, the
proposed speaker, the time requested, and the topic(s) to be covered)
and the person's written testimony by November 30, 2010. Written
submissions by interested persons who do not wish to appear at the
hearing are also due by November 30, 2010.
ADDRESSES: All filings 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 ``http://www.stb.dot.gov'' Web
site. Any person submitting a filing in the traditional paper format
should send an original and 10 copies of the filing to: Surface
Transportation Board, Attn: Docket No. EP 704, 395 E Street, SW.,
Washington, DC 20423-0001.
Copies of written submissions will be posted to the Board's Web
site and will be available for viewing and self-copying in the Board's
Public Docket Room, Suite 131. Copies of the submissions 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: Julia Farr at (202) 245-0359.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at: (800) 877-8339.]
SUPPLEMENTARY INFORMATION: The exemption provisions pertaining to
railroads first adopted in the Railroad Revitalization and Regulatory
Reform Act of 1976, Public Law 94-210, 90 Stat. 31 (1976) (4R Act), and
later modified in the Staggers Act of 1980, Public Law 96-448, 94 Stat.
1895 (1980) (Staggers Act), fundamentally changed the economic
regulation of the railroad industry by the Board's predecessor, the
Interstate Commerce Commission (the Commission). Prior to 1976, the
Commission heavily regulated the industry. The Commission focused its
regulation on ensuring equal treatment of shippers, which in some
instances, led to railroad pricing decisions based on factors other
than market considerations.
By the early 1970s, the railroads were in financial decline. In an
effort to revitalize the struggling railroad industry, Congress enacted
the 4R Act and, 4 years later, the Staggers Act. In both statutes,
Congress reduced the Commission's oversight of railroads through
various means, including the statutory exemption provisions of 49
U.S.C. 10505. Under Sec. 10505, which was enacted in the 4R Act and
modified in the Staggers Act, Congress directed the Commission to
exempt railroad activities when it found that regulation was not
necessary to carry out the national rail transportation policy (RTP) of
49 U.S.C. 10101, and either: (1) The exemption was of limited scope; or
(2) regulation was not necessary to protect shippers from abuse of
market power. (These exemption provisions are now contained in 49
U.S.C. 10502.\1\) In the Staggers Act, Congress directed the Commission
to pursue exemptions aggressively, and to correct any problems arising
as a result of the exemption through its revocation authority.\2\
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\1\ 49 U.S.C. 10505, Public Law 95-473, 92 Stat. 1361, has been
omitted by Public Law 104-88, Title I, Sec. 102(a).
\2\ H.R. Rep. No. 96-1430, at 105 (1980).
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Consistent with that Congressional directive, the Commission
exempted numerous commodities, services, and types of transactions from
regulation. In its first ``commodity'' exemption, in Rail General
Exemption Authority--Fresh Fruits & Vegetables, 361 I.C.C. 211 (1979),
the Commission exempted certain fresh fruits and vegetables from its
regulations, based largely on its conclusion that the rail market share
of movements of these goods, which were subject to strong competitive
forces, was minimal and declining. Since then, the agency has exempted
numerous other individual commodities, listed in 49 CFR 1039.10 and
1039.11, after finding that traffic for these individual commodities
was sufficiently competitive and that railroads lacked sufficient
market power such that abuse of shippers was not a substantial
threat.\3\ The Commission also exempted rail (and truck) operations
provided in connection with intermodal (TOFC/COFC) services, under 49
CFR part 1090,\4\ and the rail transportation of all commodities in
single-line boxcar service, under 49 CFR 1039.14.\5\
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\3\ See, e.g., Rail Gen. Exemption Auth.--Nonferrous
Recyclables, 3 S.T.B. 62 (1998); Rail Gen. Exemption Auth.--Petition
of AAR to Exempt Rail Transp. of Selected Commodity Groups, 9 I.C.C.
2d 969 (1993); Exemption from Regulation--Rail Transp. Frozen Food,
367 I.C.C. 859 (1983); Liquid Iron Chloride, 367 I.C.C. 347 (1983);
Rail Gen. Exemption Auth.--Miscellaneous Agric. Commodities, 367
I.C.C. 298 (1983).
\4\ See Central States Motor Freight Bureau v. ICC, 924 F.2d
1099 (DC Cir. 1991), for a summary of the agency's several actions
in connection with the progressive deregulation of TOFC/COFC
services through the exemption process.
\5\ See Brae Corp. v. United States, 740 F.2d 1023 (DC Cir.
1984).
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These agency exemption decisions were instrumental in the U.S. rail
system's transition from a heavily regulated, financially weak
component of the economy into a mature, relatively healthy industry
that operates with only minimal oversight. The transition, however, was
not without challenges, sometimes because an exemption under Sec.
10502 excuses carriers from virtually all aspects of regulation,\6\
even though the Board's continuing jurisdiction over exempted movements
also extinguishes
[[Page 66188]]
any common law cause of action regarding common carrier duties.\7\
Thus, for exempted movements, rail customers could pursue legal
remedies under the Interstate Commerce Act only if they successfully
petitioned the agency to revoke the exemption under 49 U.S.C. 10502(d).
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\6\ See Pejepscot Indus. Park--Pet. for Declaratory Order, 6
S.T.B. 886, 891, reconsideration granted in part, 7 S.T.B. 220
(2003).
\7\ See Consol. Rail Corp.--Declaratory Order--Exemption, 1
I.C.C. 2d 895, 898 (1986).
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As long as 30 years have passed since the adoption of many of these
exemptions. In recent years, the Board has received informal inquiries
questioning the relevance and/or necessity of some of the existing
commodity exemptions, given the changes in the competitive landscape
and the railroad industry that have occurred over the past few decades.
The Board will, therefore, hold a hearing to explore the continuing
utility of and the issues surrounding the categorical exemptions under
Sec. 10502, specifically the various commodity exemptions under 49 CFR
1039.10 and 1039.11, the boxcar exemptions under 49 CFR 1039.14, and
TOFC/COFC exemptions under 49 CFR part 1090. The Board seeks comments
as to the effectiveness of these exemptions in the marketplace; whether
the rationale behind any of these exemptions should be revisited; and
whether the exemptions should be subject to periodic review.
Date of Hearing: The hearing will begin at 9:30 a.m. on December 9,
2010, in the 1st floor hearing room at the Board's headquarters at 395
E Street, SW., in Washington, DC and will continue, with short breaks
if necessary, until every person scheduled to speak has been heard.
Notice of Intent to Participate and Testimony: Any person wishing
to speak at the hearing should file with the Board a combined notice of
intent to participate (identifying the party, the proposed speaker, the
time requested, and the topic(s) to be covered) and the person's
written testimony, by November 30, 2010. Also, any interested person
who wishes to submit a written statement without appearing at the
December 9, 2010 hearing should also file that statement by November
30, 2010.
Board Releases and Live Video Streaming Available Via the Internet:
Decisions and notices of the Board, including this notice, are
available on the Board's Web site at ``http://www.stb.dot.gov.'' This
hearing will be available on the Board's Web site by live video
streaming. To access the hearing, click on the ``Live Video'' link
under ``Information Center'' at the left side of the home page
beginning at 9 a.m. on December 9, 2010.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: October 21, 2010.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2010-27104 Filed 10-26-10; 8:45 am]
BILLING CODE 4915-01-P