[Federal Register Volume 62, Number 88 (Wednesday, May 7, 1997)]
[Proposed Rules]
[Pages 24896-24897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11877]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Chapter X
[STB Ex Parte No. 564]
Service Obligations Over Excepted Track
AGENCY: Surface Transportation Board, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Board seeks comments from all interested persons on the
circumstances under which it should require a railroad to operate over
excepted track that does not meet Federal Railroad Administration (FRA)
[[Page 24897]]
class 1 track safety standards, and that the operating railroad deems
to be unsafe.
DATES: Notices of intent to participate are due by May 27, 1997.
Shortly thereafter, a list of participants will be issued. Comments are
due by July 7, 1997. Replies are due by August 5, 1997.
ADDRESSES: Send an original and 10 copies of notices of intent to
participate and pleadings referring to STB Ex Parte No. 564: Office of
the Secretary, Case Control Unit, Surface Transportation Board, 1925 K
Street, N.W., Washington, DC 20423.
Also, send one copy 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: In a decision in GS Roofing Products
Company, Inc., Beazer West, Inc., D/B/A Gifford Hill & Company, Bean
Lumber Company and Curt Bean Lumber Company v. Arkansas Midland
Railroad and Pinsly Railroad Company, Inc., Docket No. 41230 (STB
served Mar. 11, 1997) (GS Roofing), 1 we reviewed a fact-
specific complaint concerning whether a railroad's embargo of certain
``excepted'' track that had been operated at less than FRA ``class 1''
operating standards was unlawful so as to support a request for damages
for failure to provide service during the period of the embargo. We
found that it was not unlawful.
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\1\ Petition for review pending, GS Roofing Products Company,
Inc., et al. v. Surface Transportation Board, No. 97-107 (8th Cir.).
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In our GS Roofing decision, we addressed, in general terms, the
relationship between the common carrier obligation and a railroad's
determination to impose an embargo. We pointed out (at 2 n.5) that a
carrier's common carrier obligation is not extinguished by its
imposition of an embargo. We also noted (at 8) that, ``under its common
carrier obligation, a railroad's primary responsibility is to restore
safe and adequate service within a reasonable period of time over any
line as to which it has not applied for abandonment authority.''
Nevertheless, in the GS Roofing case, we concluded that the carrier's
initial determination to embargo the track was reasonable, as the track
had been damaged by flooding and the carrier thus had reasonably
concluded that the track was unsafe. We also found that the carrier's
continuation of the embargo for approximately two months, before it
determined whether to repair the track or instead to seek to abandon or
sell it, was not unreasonable.
We recognize that, in some circumstances, excepted track may be
safe, if it is operated at appropriate speeds and under appropriate
operating conditions. For that reason, and because an embargo does not
extinguish the common carrier obligation, the Interstate Commerce
Commission (ICC), our predecessor with respect to railroad regulation,
found a carrier liable for not repairing excepted track and resuming
operations over it in Louisiana Railcar, Inc. v. Missouri Pacific R.R.,
5 I.C.C.2d 542, 546 (1989), a case that we cited in our GS Roofing
decision.
Nonetheless, a railroad may be of the view that certain excepted
track--even track that has not been expressly condemned by the FRA--is
not safe. In light of the implications of the Government forcing a
carrier to operate over track that the carrier may reasonably believe
is unsafe, the ICC historically used class 1 standards as the minimum
level of safety compliance at which a railroad would be required to
operate.
Because our GS Roofing decision was fact-specific, we did not
address, beyond the general principles noted earlier, the circumstances
under which a railroad's refusal to provide service over excepted track
would be deemed to be unreasonable. Nevertheless, our decision has
apparently generated some confusion, and indeed has been characterized
as having held that railroads can, as a matter of course, avoid their
common carrier obligation simply by declaring their track to be
excepted track.
Those questions--although they go well beyond any matter addressed
in the fact-specific GS Roofing decision itself, are significant, and
of broad interest. Accordingly, we are initiating sua sponte this
proceeding to address the circumstances under which we should require a
railroad to provide service to shippers over track that does not meet
FRA class 1 track safety standards, and that the carrier has concluded
is not safe. We seek the views not only of the operating railroads and
their shippers, but also of rail labor, whose members operate over the
track at issue; the FRA, which is responsible for administering the
railroad track safety program; state and local governments that are
involved with rail transportation planning and programs; and any other
interested persons. 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 continue to proceed on a case-by-
case basis, as we and the ICC have done in the past.
Decided: April 28, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-11877 Filed 5-6-97; 8:45 am]
BILLING CODE 4915-00-P
