[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 766-769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33284]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1011, 1034, 1102, 1104, and 1115
[Docket No. EP 697]
Amtrak Emergency Routing Orders
AGENCY: Surface Transportation Board, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (Board or STB) proposes to
establish regulations governing the issuance of emergency routing
orders upon application of the National Railroad Passenger Corporation
(Amtrak). Pursuant to 49 U.S.C. 24308(b), the Board has statutory
authority to require rail carriers to provide facilities immediately
when necessary for the movement of Amtrak trains when Amtrak cannot
operate its trains via normal routings due to rail line closures or
other emergencies.
DATES: Comments are due by February 7, 2011. Reply comments are due by
February 22, 2011.
ADDRESSES: Information or questions regarding this proposed rule should
reference Docket No. EP 697 and be in writing addressed to: Chief,
Section of Administration, Office of Proceedings, Surface
Transportation Board, 395 E Street, SW., Washington, DC 20423-0001.
Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted
to the Board's Web site.
FOR FURTHER INFORMATION CONTACT: Gabriel S. Meyer at 202-245-0389.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: The Board proposes to establish regulations
governing the issuance of emergency routing orders upon application of
the National Railroad Passenger Corporation (Amtrak). The rules will be
codified at 49 CFR parts 1011, 1034, 1102, 1104, and 1115.
Amtrak is a government-owned corporation that operates intercity
passenger trains on an approximately 21,000-mile rail network, serving
46 States and 3 Canadian provinces. During its 2010 fiscal year, Amtrak
carried more than 28 million passengers. With the exception of certain
rail lines located primarily in the northeastern United States, Amtrak
does not own the lines over which its trains operate. Most of the lines
Amtrak uses are owned and operated by freight railroads, which are
subject to the Board's jurisdiction.
Periodically, an established Amtrak route becomes blocked or closed
as the result of a derailment, unscheduled maintenance, severe weather,
or other emergency. In these circumstances, if an alternate rail
routing exists, Amtrak may seek to detour its trains around the
blockage using the alternate route. If no alternate route is available,
Amtrak may be forced to suspend train operations.
In most emergency rerouting situations, Amtrak reaches a voluntary
agreement governing the terms of its use with the rail carrier that
owns the alternate route. Occasionally, however, Amtrak is unable to
reach an agreement. In this event, Amtrak may seek relief from the
Board as provided by the statute:
* * * * *
Operating During Emergencies.--To facilitate operation by Amtrak
during an emergency, the Board, on application by Amtrak, shall
require a rail carrier to provide facilities immediately during the
emergency. The Board then shall promptly prescribe reasonable terms,
including indemnification of the carrier by Amtrak against personal
injury risk to which the carrier may be exposed. The rail carrier
shall provide the facilities for the duration of the emergency.
* * * * *
49 U.S.C. 24308(b).
Currently, there are no Board rules establishing procedures for
Amtrak to obtain the relief authorized by the statute.\1\ The Board
therefore proposes revising its rules to remove uncertainty regarding
Amtrak emergency routing order applications. The proposed rules are set
forth in this decision and are discussed below.
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\1\ A Board order served on February 23, 1996 (Appointment of
Agent to Require Emergency Routing of Amtrak Passenger Trains) (no
docket number), named an agent of the Board, who was vested with
authority to issue orders requiring railroads to make their
facilities immediately available to Amtrak during emergencies. This
continued a past practice of vesting, in named individuals,
authority to issue such emergency orders. The agent named in the
1996 decision has since retired. As a result, the Board is revising
its procedures for Amtrak emergency routing order requests. The
Board has rarely had to issue Amtrak emergency routing orders. It
last issued one in 1997. STB Passenger Train Operation No. 123, STB
served Aug. 12, 1997 (no docket number).
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Delegations of Authority
Section 1011.4(a)(10): Under the proposed rules, authority to issue
Amtrak emergency routing orders is delegated to the Chairman of the
Surface Transportation Board (Chairman). The Board proposes adding this
delegation of authority to others already contained
[[Page 767]]
in 49 CFR 1011.4(a). Additionally, in accordance with the existing rule
at 49 CFR 1011.3(a)(3), in the Chairman's absence, authority for
issuance of Amtrak emergency routing orders will be vested in the Vice
Chairman, and in the event of the absence of both the Chairman and Vice
Chairman, authority for issuance of Amtrak emergency routing orders
will be vested in the remaining Board Member.
Filing Procedures
The proposed rules establish procedures that Amtrak shall use when
submitting emergency routing order applications. The procedures are
found at 49 CFR parts 1034 and 1104.
Section 1034.2(a). This proposed rule requires Amtrak to file
emergency routing order applications in accordance with the Board's
rules of practice at 49 CFR part 1104, except as otherwise provided in
part 1034. The rule further requires that due to the time-sensitive
nature of such applications, Amtrak shall file them with the Board in
person or using the Board's e-filing option (as set forth at 49 CFR
1104.1(e)). Simultaneously, Amtrak shall send facsimile copies of
applications to the Office of the Chairman at 202-245-0452 and to the
Director of the Office of Public Assistance, Governmental Affairs, and
Compliance (OPAGAC) at 202-245-0461.\2\
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\2\ The Board understands that, given Amtrak's service schedule,
emergencies necessitating Board intervention under these proposed
regulations may arise outside of normal business hours. As indicated
by the very short response times in the proposed regulations, the
Board is prepared to handle all requests quickly. If necessary,
Amtrak may, during non-business hours, alert the Board via e-mail to
an imminent filing by Amtrak to be made on the next business day.
The Board will establish a designated e-mail address for this
purpose at a later date.
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Section 1034.2(b). This proposed rule describes the required
contents of Amtrak emergency routing order applications. Applications
shall: (1) Describe the nature of the emergency necessitating the
routing order and its expected duration; (2) identify the Amtrak
operations or trains that are or will be affected by the emergency; (3)
provide an exact description of the facilities required for Amtrak's
use, including, if available, mileposts of the detour line(s) it
intends to use; (4) describe Amtrak's efforts to reach a consensual
agreement with the carrier(s) whose facilities it seeks to use,
including the name(s) of the representative(s) contacted; (5) include
proposed terms of the detour agreement, including indemnification of
the carrier(s) by Amtrak; and (6) specify the date on which Amtrak
intends to begin using the facilities.
Section 1034.2(c). This proposed rule requires Amtrak, when filing
an emergency routing order application, to make best efforts to
simultaneously serve a copy of its application upon any affected rail
carrier(s) via facsimile, e-mail, or in person, to confirm receipt of
the application, and to certify to the Board that it has done so.
Because of the emergency nature of such applications, no other means of
service is sufficient to provide timely notice to affected parties.
This proposed rule also requires Amtrak to comply with the general
service requirements of 49 CFR 1104.12, to the extent they do not
conflict with this rule. For purposes of fulfilling the requirement
under this rule that Amtrak simultaneously serve affected carriers,
Amtrak must serve its application upon the representative(s) of the
carrier(s) contacted in its efforts to reach a consensual agreement
governing Amtrak emergency routing, and upon the registered agent(s) of
the carrier(s).
Section 1034.2(d). This proposed rule establishes that any carrier
potentially affected by an Amtrak emergency routing order application
must file a reply with the Board within 1 business day following
Amtrak's service of its application upon the carrier. However, because
the language of the authorizing statute requires that the Board
``promptly prescribe'' emergency routing agreement terms, it may be
impractical in some instances for the Board to await replies from
affected carriers before acting on Amtrak's request. The Board will
therefore consider replies as time permits and, if necessary, the Board
may contact Amtrak or affected carriers to seek their input. (See the
proposed rule at 49 CFR 1102.2(b)(4) governing ex parte
communications.) When filing a reply, an affected carrier shall be
governed by the same filing and service rules as those governing
Amtrak's filing.
Section 1034.2(e). This proposed rule requires the Chairman, or in
the Chairman's absence, the Vice Chairman or remaining Board Member, to
issue an initial decision granting or denying Amtrak's application for
an emergency routing order no later than 1 business day after Amtrak
files it with the Board.
Section 1104.12(b). This rule provides for certain exceptions to
the Board's rules governing service of pleadings. As modified, the rule
incorporates by reference the special filing and service requirements
for Amtrak emergency routing order applications and replies thereto
contained in 49 CFR 1034.2(a) and (c). The rule also provides that
appeals and replies thereto are subject to the requirements of 49 CFR
1034.2(a) and (c).
Ex Parte Communications
Section 1102.2(b)(4). The Board proposes to add this rule to the
list of instances in which ex parte communications are not prohibited.
This rule is necessary to allow the Board, or designated Board staff,
to obtain information in situations in which it may be impractical to
await formal written submissions from Amtrak or affected carriers. This
rule also permits ex parte communications with Amtrak, or carrier(s)
over whose lines Amtrak seeks emergency routing authority, in
connection with an appeal of the Board's initial decision on an Amtrak
emergency routing order application.
Appeals
Section 1115.2(h)(1). This proposed rule provides that parties may
appeal initial Amtrak emergency routing order decisions. Under the
proposed rule, any appeal must be filed within 1 business day following
service of the decision.
Section 1115.2(h)(2). Under this proposed rule, a reply to an
appeal is optional. Any reply must be filed within 1 business day
following the filing of the appeal, and the Board will consider replies
only if time permits. If necessary, the Board may contact Amtrak or an
affected carrier to seek its input regarding an appeal. (See proposed
rule at 49 CFR 1102.2(b)(4) governing ex parte communications.)
Section 1115.2(h)(3). This proposed rule requires the entire Board
to issue a decision granting or denying an appeal of an initial Amtrak
emergency routing order decision within 1 business day following the
filing of an appeal.
Section 1115.2(h)(4). This proposed rule provides that the filing
of an appeal will not stay the effectiveness of an Amtrak emergency
routing order that has already taken effect, or otherwise stay the
effectiveness of an initial decision regarding Amtrak's application for
an emergency routing order.
Section 1115.2(i). This proposed rule provides that when filing
appeals of initial decisions on Amtrak emergency routing applications,
or replies to such appeals, parties are governed by the special service
rules contained at 49 CFR 1034.2(a) and (c).
The Board further proposes modifying, as necessary, section
1115.2(e) (time to file appeals and replies to appeals) and section
1115.2(f) (appeal staying effectiveness of decision) to reflect the
addition of section 1115.2(h). Section 1115.2(e) currently permits
parties to appeal
[[Page 768]]
decisions of an individual Board Member (including the Chairman) within
20 days following issuance, and permits parties to file replies to
appeals within 20 days following the filing of an appeal. Under the
proposed rules, section 1115.2(e) will establish that the 20-day appeal
and reply deadlines will not apply to appeals of initial decisions on
Amtrak emergency routing order applications. Section 1115.2(f)
currently provides that a timely filed appeal will stay the
effectiveness of a decision pending a determination of the appeal.
Under the proposed rules, section 1115.2(f) will provide that the
filing of an appeal will not stay the effectiveness of an initial
decision on an Amtrak emergency routing order application.
Conclusion
With regard to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, this action directly impacts Amtrak and does not directly
impact small entities as defined in the Regulatory Flexibility Act.
Accordingly, pursuant to 5 U.S.C. 605(b), the Board certifies that
these proposed regulations will not have a significant impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act. A copy of this decision is being provided
to the Chief Counsel for Advocacy, Small Business Administration.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1011
Administrative practice and procedure, authority delegations
(Government agencies), organization and functions (Government
agencies).
49 CFR Part 1034
Railroads.
49 CFR Part 1102
Communications.
49 CFR Part 1104
Administrative practice and procedure.
49 CFR Part 1115
Appellate procedures.
It is ordered:
1. The Board proposes rules as set forth in this decision. Notice
of the proposed rules will be published in the Federal Register.
2. Comments regarding the proposed rules are due by February 7,
2011. Reply comments are due by February 22, 2011.
Decided: December 22, 2010.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Nottingham.
Andrea Pope-Matheson,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend parts 1011, 1034, 1102, 1104,
and 1115 of title 49, chapter X, of the Code of Federal Regulations, as
follows:
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
1. The authority citation for part 1011 is revised to read as
follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; and 49 U.S.C. 701, 721,
11123, 11124, 11144, 14122, 15722, and 24308(b).
2. Amend Sec. 1011.4 by adding paragraph (a)(10) to read as
follows:
Sec. 1011.4 Delegations to Individual Board Members.
(a) * * *
(10) Issuance of decisions on Amtrak applications for emergency
routing orders, filed pursuant to 49 U.S.C. 24308(b) (Operating during
emergencies).
* * * * *
PART 1034--ROUTING OF TRAFFIC
3. The authority citation for part 1034 is revised to read as
follows:
Authority: 49 U.S.C. 721, 11123, and 24308(b).
4. Add Sec. 1034.2 to read as follows:
Sec. 1034.2 Amtrak emergency routing orders.
(a) Filing. All Amtrak applications for emergency routing orders
shall be made in accordance with the Board's rules of practice at 49
CFR Part 1104, except to the extent otherwise provided in this
paragraph (a) and paragraph (c) of this section.
(1) Amtrak shall file any application for an emergency routing
order with the Board in person or using the Board's e-filing option (as
described at 49 CFR 1104.1(e)).
(2) Simultaneously with its filing of an emergency routing order
application, Amtrak shall send facsimile copies of its application to
the Office of the Chairman at 202-245-0452 and to the Director of the
Office of Public Assistance, Governmental Affairs, and Compliance
(OPAGAC) at 202-245-0461.
(b) Contents of application. Amtrak applications for emergency
routing orders shall contain the following information:
(1) A description of the nature of the emergency necessitating the
routing order and its expected duration.
(2) A description of Amtrak trains or operations that are or will
be affected by the emergency.
(3) An exact description of the facilities required for Amtrak's
use, including mileposts of the detour line(s), if available.
(4) An explanation of Amtrak's efforts to reach a consensual
agreement with the carrier(s) whose facilities Amtrak seeks to use,
including the name(s) of the representative(s) contacted.
(5) Proposed terms of the detour agreement, including
indemnification of the carrier(s) by Amtrak.
(6) The date on which Amtrak intends to begin using the facilities.
(c) Service. When filing an emergency routing order application
with the Board, Amtrak shall certify to the Board that it
simultaneously served, or made best efforts to serve, its application
upon the affected rail carrier(s) via facsimile, e-mail, or in person,
and that its application was received by the affected rail carrier(s).
In serving affected rail carrier(s), Amtrak shall serve its application
upon the representative(s) of the carrier(s) contacted in its efforts
to reach a consensual agreement governing Amtrak emergency routing, and
shall serve the registered agent(s) of the carrier(s). Amtrak shall
also comply with the general service requirements of 49 CFR 1104.12 to
the extent they do not conflict with this paragraph (c).
(d) Replies. Any carrier potentially affected by an Amtrak
application for an emergency routing order shall file a reply with the
Board within 1 business day of the time Amtrak serves a copy of its
application upon the carrier. The Board will consider replies as time
permits. When filing a reply, a carrier shall comply with the filing
and service requirements contained in paragraphs (a) and (c) of this
section, and 49 CFR 1104.12 to the extent they do not conflict with
paragraphs (a) and (c) of this section.
(e) Decisions. An initial decision granting or denying Amtrak's
application for an emergency routing order shall be issued no later
than 1 business day after Amtrak files its application for an emergency
routing order with the Board.
PART 1102--COMMUNICATIONS
5. The authority citation for part 1102 is revised to read as
follows:
Authority: 49 U.S.C. 721 and 24308(b).
6. Amend Sec. 1102.2 by adding paragraph (b)(4) to read as
follows:
[[Page 769]]
Sec. 1102.2 Ex parte communications prohibited; penalties provided.
* * * * *
(b) * * *
(4) Any communication made by the Board, any Board Member, or
designated staff member, to obtain information from Amtrak or from a
carrier(s) over whose lines Amtrak seeks emergency routing authority,
regarding an emergency routing order application or an appeal thereof,
pursuant to the Board's authority under 49 U.S.C. 24308(b).
* * * * *
PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-
PLEADINGS, GENERALLY
7. The authority citation for part 1104 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 559; 18 U.S.C. 1621; 21 U.S.C. 862;
and 49 U.S.C. 721 and 24308(b).
8. Amend Sec. 1104.12 by revising paragraph (b) to read as
follows:
Sec. 1104.12 Service of pleadings and papers.
* * * * *
(b) Exceptions. (1) Copies of letters to the Board relating to oral
argument under part 1116, and subpoenas under Sec. 1113.2, need not be
served on other parties of the proceeding. Service of comments in
rulemaking proceedings is not required, unless specifically directed by
the Board.
(2) When filing an emergency routing order application, or reply to
such application, with the Board, Amtrak and affected carriers shall
comply with the special filing and service requirements contained in 49
CFR 1034.2(a) and (c). These requirements also apply to the filing of
an appeal to an initial Amtrak emergency routing order decision or to a
reply to such an appeal. Amtrak and affected carriers shall comply with
the general service requirements of paragraph (a) of this section, to
the extent they do not conflict with 49 CFR 1034.2(a) and (c).
* * * * *
PART 1115--APPELLATE PROCEDURES
9. The authority citation for part 1115 is revised to read as
follows:
Authority: 5 U.S.C. 559, and 49 U.S.C. 721 and 24308(b).
10. Amend Sec. 1115.2 by revising paragraphs (e) and (f), and
adding paragraphs (h) and (i) to read as follows:
Sec. 1115.2 Initial decisions.
* * * * *
(e) Except as provided in paragraph (h)(1) of this section, appeals
must be filed within 20 days after the service date of the decision or
within any further period (not to exceed 20 days) the Board may
authorize. Except as provided in paragraph (h)(2) of this section,
replies must be filed within 20 days of the date the appeal is filed.
(f) Except as provided in paragraph (h)(4) of this section, the
timely filing of an appeal to an initial decision will stay the
effectiveness of the action pending determination of the appeal.
* * * * *
(h) Appeals to initial decisions on Amtrak applications for
emergency routing orders.
(1) Any carrier potentially affected by an initial Amtrak emergency
routing order decision may appeal such a decision. Any appeal must be
filed within 1 business day following service of the initial decision.
(2) A reply to an appeal of an initial Amtrak emergency routing
order decision is optional. Any reply must be filed within 1 business
day following the filing of the appeal. The Board will consider replies
only if time permits.
(3) The entire Board shall issue a decision granting or denying an
appeal to an initial Amtrak emergency routing order decision within 1
business day following the filing of an appeal.
(4) Filing of an appeal will not stay the effectiveness of an
Amtrak emergency routing order that has already taken effect, or
otherwise stay the effectiveness of an initial decision on Amtrak's
application for an emergency routing order.
(i) When filing appeals to initial decisions on Amtrak emergency
routing order applications, and replies to such appeals, parties are
governed by the special service rules contained at 49 CFR 1034.2(a) and
(c).
[FR Doc. 2010-33284 Filed 1-5-11; 8:45 am]
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