[Federal Register Volume 62, Number 233 (Thursday, December 4, 1997)]
[Proposed Rules]
[Pages 64193-64194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31795]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board.
49 CFR Chapter X
[STB Ex Parte No. 574]
Safe Implementation of Board-Approved Transactions
AGENCY: Surface Transportation Board.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Board seeks comments from all interested persons on the
extent to which railroads should be required to provide detailed
information setting forth the manner in which they intend to safely
implement authority granted by the Board in proceedings subject to the
Board's jurisdiction.
DATES: Notices of intent to participate are due by December 24, 1997.
Shortly thereafter, a list of participants will be issued. Comments are
due by January 19, 1998. Replies are due by February 12, 1998.
ADDRESSES: Send an original and 10 copies of notices of intent to
participate and pleadings referring to STB Ex Parte No. 574: Surface
Transportation Board, Office of the Secretary, Case Control Unit, 1925
K Street, N.W., Washington, DC 20423.
Once the list of participants has been issued by the Board, send
one copy of each comment and each reply to each party on the list of
participants.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 565-1600 [TDD
for the hearing impaired: (202) 565-1695].
SUPPLEMENTARY INFORMATION: The rail transportation policy (RTP) (49
U.S.C. 10101), which was adopted in the Staggers Rail Act of 1980 and
amended in the ICC Termination Act of 1995, establishes the basic
policy directives against which all of the statutory provisions we
administer must be weighed. The RTP provides, in relevant part, that,
``[i]n regulating the railroad industry, it is the policy of the United
States Government * * * to promote a safe and efficient rail
transportation system'' * * * [by allowing rail carriers to] operate
transportation facilities without detriment to the public health and
safety * * *.'' The rail transportation policy applies to all
transactions subject to Board jurisdiction.
Over the years, the Board and its predecessor, the Interstate
Commerce Commission (ICC), have considered the issue of safety along
with other relevant issues in individual cases. For example, the ICC
and the Board, in consultation with the Federal Railroad Administration
(FRA), which has primary responsibility over railroad safety
enforcement, have routinely considered safety in their environmental
review of all rail mergers, acquisitions, line constructions, and
similar transactions. In 1993, the ICC denied an application because
the agency believed that no conditions could sufficiently mitigate the
unsafe conditions arising out of the proposed construction of the rail
line in Construction and Operation--Indiana and Ohio Ry. Co., 9
I.C.C.2d 783 (1993). In a similar vein, we routinely address safety
issues, with the advice of the FRA, in the context of rail
embargoes.1
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\1\ In the embargo context, for example, a shipper might dispute
a railroad's contention that it is temporarily unable to provide
service because of unsafe operating conditions. The Board, in a
recent decision, declared that, in such situations, it would secure
an inspection from an FRA-certified safety inspector before
directing service over a line embargoed for safety reasons. Service
Obligations Over Excepted Track, STB Ex Parte No. 564 (STB served
Oct. 22, 1997).
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Recently, in a pending railroad merger proceeding, we undertook to
address safety issues in a more systematic way. Specifically, in
response to a request in the ongoing Conrail Acquisition proceeding by
the FRA, we required the applicant railroads in that case to prepare
detailed plans addressing how they propose to integrate their
operations to ensure continued safety if the merger is approved by the
Board. CSX Corporation and CSX Transportation, Inc., Norfolk Southern
Corporation and Norfolk Southern Railway Company--Control and Operating
Leases/Agreements--Conrail, Inc. and Consolidated Rail Corporation, STB
Finance Docket No. 33388, Decision No. 52 (STB served Nov. 3, 1997)
(Conrail Acquisition). In our decision, we explained that the
railroads' submissions would be made part of the environmental record
in that proceeding and dealt with in the ongoing environmental review
process in that case. We stated that the railroads' submissions, which
are due to be filed December 3rd, will be incorporated in a separate
section of the Draft Environmental Impact Statement (DEIS) that is to
be issued by the end of the year. We requested the FRA to provide us
with its analysis of the plans, and invited comments from all other
interested persons, during the 45-day comment period that will be
provided on the DEIS. After review of these analyses and comments, the
Board's environmental staff will address safety implementation issues
in the Final
[[Page 64194]]
Environmental Impact Statement for the proposed Conrail Acquisition. We
will then consider the full environmental record, including the
information concerning Applicants' safety implementation plans, in
arriving at our decision in the Conrail Acquisition proceeding.
The approach outlined above will assure our ability to fully
address safety implementation issues in the proposed Conrail
Acquisition proceeding. Having developed a vehicle by which to evaluate
the impact on rail safety of one transaction, we believe it is
appropriate to consider the advisability of promulgating a rule to
extend this process to other rail transactions subject to the Board's
jurisdiction. Accordingly, we seek public comment on the question of
how the Board should proceed in this regard in exercising its
jurisdiction over such transactions.
We are aware that the FRA has suggested that rules of general
applicability might be appropriate for future mergers. In our view, the
process adopted in STB Finance Docket No. 33388, which provides for
full utilization of the expertise of both the Board and the FRA,
establishes a mechanism for handling future merger cases. It might also
have wider applicability to other types of transactions subject to the
Board's jurisdiction; alternatively, different procedures for
implementing the Board's responsibilities under the RTP to consider
matters bearing on the safe implementation of transactions might be
preferable outside the merger area. The administrative process permits
the Board to proceed either by rule or on a case-by-case basis, and to
address some kinds of transactions by rule and some by reliance on the
development of precedent.
Accordingly, because the questions at issue here are significant
and of broad interest, we are initiating sua sponte this proceeding to
address the extent to which railroads should be required to provide
detailed information setting forth the manner in which they intend to
safely implement authority granted by the Board in proceedings subject
to the Board's jurisdiction. We specifically seek the views of the FRA
and of any other interested persons on these issues. We seek public
comments on whether we should proceed broadly or on a case-by-case
basis, and on specific standards and procedures that the Board could
adopt by rule to assure the safe implementation of rail transactions
subject to our jurisdiction. Parties filing comments should indicate
whether their specific recommendations would apply to all transactions
or only to certain types and, if the latter, which ones.
Depending on the nature of the submissions presented, we will
determine at a future date whether to propose formal rules, issue a
policy statement, or proceed on a case-by-case basis, as we have done
in the Conrail Acquisition proceeding.
Decided: November 26, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-31795 Filed 12-3-97; 8:45 am]
BILLING CODE 4915-00-P
