[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45334-45336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22810]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1157
[STB Ex Parte No. 563]
Commuter Rail Service Continuation Subsidies and Discontinuance
Notices
AGENCY: Surface Transportation Board, DOT.
[[Page 45335]]
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (Board) is removing from the
Code of Federal Regulations regulations concerning subsidies for the
continuation of commuter rail service and notices of the discontinuance
of commuter rail service, because the statutes have been repealed.
EFFECTIVE DATE: September 26, 1997.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (ICCTA),
abolished the Interstate Commerce Commission (ICC) and established the
Board within the Department of Transportation. Section 204(a) of the
ICCTA provides that ``[t]he Board shall promptly rescind all
regulations established by the [ICC] that are based on provisions of
law repealed and not substantively reenacted by this Act.''
In a notice of proposed rulemaking served and published in the
Federal Register on June 12, 1997 (62 FR 32068), the Board proposed to
remove the two sets of regulations at 49 CFR part 1157, because some of
these regulations were based, at least in part, on repealed statutes.
We noted, however, that statutes outside the ICCTA refer to, and hence
may require the maintenance in substance of, part 1157. We instituted
this proceeding to determine whether these regulations could be
eliminated, or whether they had continuing validity and had to be
retained.
Background
Subpart A. Subpart A of part 1157 deals with the determination of
commuter rail continuation subsidies for Consolidated Rail Corporation
(Conrail). As described in our June NPR,1 under the Regional
Rail Reorganization Act of 1973 (3R Act) and the Railroad
Revitalization and Regulatory Reform Act of 1976 (4R Act), Conrail was
to continue providing rail passenger service if a state or local
transportation authority offered a subsidy to pay for the unprofitable
service. 45 U.S.C. 744(e).
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\1\ See that document for a more detailed description of the
statutory setting for the part 1157 regulations.
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The 3R Act also created the Rail Services Planning Office (RSPO) of
the former ICC, eventually codified at former 49 U.S.C. 10361-64.
Pursuant to the 4R Act, RSPO was required to develop standards for the
computation of subsidies for the continuation of Conrail commuter
services (49 U.S.C. 10362).2 RSPO issued the regulations
originally codified at 49 CFR part 1127 and now found at 49 CFR part
1157, subpart A, on August 3, 1976, 41 FR 32546, in Ex Parte No. 293
(Sub-No. 8), Standards for Determining Commuter Rail Service
Continuation Subsidies and Emergency Operating Payments.3
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\2\ The RSPO subsidy regulations were also referenced in the
Conrail statute at 45 U.S.C. 744(e).
\3\ The subsidy standards prescribe various responsibilities for
RSPO. Under Sec. 1157.3(d)(4), upon request of either party, RSPO
will mediate disputes about the subsidy agreement, the subsidy
standards, and certain plans. Under Sec. 1157.4, parties desiring an
interpretation of the standards can file a written petition; RSPO
will issue an interpretation unless it determines that the subsidy
standards need to be amended, in which case it will institute a
rulemaking proceeding. Under Sec. 1157.7(d), in an impasse over
joint special studies, either party may submit the dispute to RSPO
for resolution. Finally, under Sec. 1157.3(f), the subsidized
carrier is to submit financial status reports to RSPO.
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Under the Northeast Rail Service Act of 1981 (NERSA), Conrail was
relieved, on January 1, 1983, of any legal obligation to provide
commuter service. Section 1137 of NERSA chartered the Amtrak Commuter
Services Corporation (Amtrak Commuter), a wholly owned subsidiary of
the National Railroad Passenger Corporation (Amtrak).4 49
U.S.C. 24501-06. Under section 24505(a)(1), Amtrak Commuter is required
to provide the commuter rail passenger service that Conrail was
obligated to provide. Moreover, under section 24505(a)(2), Amtrak
Commuter may provide passenger service if a commuter authority pays the
avoidable costs plus a reasonable return on value less the revenues
from the transportation. RSPO was to issue the regulations for such
payments. Section 24505(b)(1).5 (The post-NERSA regulatory
response will be discussed in connection with subpart B, infra.)
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\4\ Amtrak was created by the Rail Passenger Service Act of
1970, Pub. L. 91-518, 84 Stat. 1327 (1970).
\5\ Under 49 U.S.C. 24505(b)(1)(B):
A commuter authority making an offer * * * shall * * * make the
offer according to the regulations the Rail Services Planning Office
prescribes under section 10362(b)(5)(A) and (6) of this title.
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The RSPO statutes, 49 U.S.C. 10361-64, were repealed by the ICCTA.
Moreover, the ICCTA removed the requirement in 45 U.S.C. 744(e) that
RSPO issue regulations for rail passenger subsidies for Conrail. See
section 327(3) of the ICCTA. Finally, under 49 U.S.C. 10501(c)(2), as
amended by the ICCTA, with certain exceptions not relevant here, ``the
Board does not have jurisdiction under this part over mass
transportation provided by a local governmental authority.''
6 Nevertheless, the subpart A regulations are referred to in
the Amtrak Commuter statute (45 U.S.C. 24505(b)(1)). Accordingly, we
sought comment in the June NPR on whether subpart A could be
eliminated.
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\6\ Under former 49 U.S.C. 10504(b)(2), the ICC did not have
jurisdiction over mass transportation provided by a local
governmental authority if the fares, or the authority to apply to
the ICC for changes in those fares, were subject to the approval of
the governor of the state in which the transportation was provided.
The ICCTA broadened this exemption, and the Board does not have
jurisdiction whether or not the governor can approve a fare.
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Subpart B. The subpart B regulations of part 1157 concern notices
of the discontinuance of commuter rail service by Amtrak Commuter.
Under section 24505(e)(2) RSPO was directed to prescribe regulations
for ``the necessary contents of the notice required under this
subsection.'' RSPO issued rules in Ex Parte No. 293 (Sub-No. 8), which
were published in the Federal Register on January 5, 1983 (48 FR 413).
RSPO divided the regulations at 49 CFR part 1127 (which then contained
the subsidy standards) into two sections: subpart A, consisting of the
existing subsidy standards,7 and subpart B, comprising the
new discontinuance notice procedures.
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\7\ As discussed infra, while RSPO issued in response to NERSA
new regulations under subpart B for discontinuance notices, it did
not make any substantive changes to the subsidy standards;
references to Conrail were retained. However, the NPR published
September 9, 1982 (47 FR 39700) implicitly proposed to apply the
subsidy standards to Amtrak Commuter cases: ``After January 1, 1983,
[Amtrak Commuter] is required to take over the commuter operations
currently provided by Conrail if a commuter authority offers a
subsidy payment which complies with RSPO's Standards * * *.''
(Emphasis supplied; citation omitted.)
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The regulations repeat the statutory criteria that Amtrak Commuter
may discontinue service on 60 days' notice if it is not offered a
subsidy or a subsidy is not paid when due. The regulations prescribe
the form and content of the notice and method of posting and also
require that the notice be served on the subsidizer, governor,
designated state agency, RSPO, and Amtrak.
While section 24505(e)(2) still refers to RSPO prescribing
regulations for Amtrak Commuter discontinuance notices, the ICCTA
eliminated RSPO and removed references in the Conrail statute at 45
U.S.C. 744(e) to regulations issued by RSPO. Moreover, under section
10501(c)(2), the Board does not have jurisdiction over local
governmental authorities providing mass transportation. Thus, we also
sought comment in the June NPR on whether the subpart B regulations
should be eliminated.
[[Page 45336]]
Position of the Parties
Amtrak filed comments stating that it did not object to the removal
of the part 1157 regulations. Amtrak submits that the subpart A
regulations did affect it when Conrail was operating commuter services
because many of these services occurred over rail lines owned by
Amtrak, but that, because Conrail has not provided the continued
commuter services since 1983, the subpart A regulations no longer
control the compensation Amtrak receives for services provided by
others over lines Amtrak owns.
Amtrak also submits that the subpart A regulations were to have
been used to determine the subsidies for Amtrak Commuter when it took
over the continued commuter services from Conrail on January 1, 1983.
It notes, however, that Amtrak Commuter has never conducted any
operations because all the commuter authorities chose to operate the
continued commuter services themselves or to contract with an entity
other than Amtrak Commuter to do so. For the same reason, Amtrak also
maintains that it is unnecessary to retain the subpart B
regulations.8
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\8\ Amtrak also states that the Senate Committee on Commerce,
Science, and Transportation recently approved the Amtrak Reform and
Accountability Act of 1997, which would repeal all the provisions of
the Rail Passenger Service Act concerning Amtrak Commuter.
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The American Public Transit Association (APTA) supports the removal
of the part 1157 regulations. APTA states that it is a private,
nonprofit trade association representing the North American transit
industry. Included in its membership are about 400 American public and
private mass transit systems that, according to APTA, carry over 95
percent of those using public transit in this country.
The Brotherhood of Locomotive Engineers (BLE) argues that the
regulations should not be modified or removed unless there is a need
shown for the change, and that such a need was not shown in the June
NPR. BLE states that it has not participated in subsidy matters, but
indicates that it could become involved in the future. It asserts that
``it is important that [subpart] B of the regulations, governing notice
to the public, be maintained.''
Discussion and Conclusions
We will remove the regulations in part 1157, in light of the
statutory changes made by the ICCTA, because the regulations have no
applicability to current commuter transportation.
We have noted the changes in the ICCTA affecting the part 1157
regulations. The RSPO statutes, 49 U.S.C. 10361-64, were repealed. The
ICCTA, moreover, eliminated from section 744(e) references to subsidy
standards set by RSPO. Finally, under 49 U.S.C. 10501(c)(2), the ICCTA
broadened the exemption from jurisdiction of mass transportation
provided by a local governmental authority.
The ICCTA, however, did not remove all statutory references to the
RSPO. 49 U.S.C. 24505(b)(2) and 24505(e)(2) still allow RSPO to update
the subsidy regulations and require it to prescribe the notice of
discontinuance regulations, respectively. We do not know whether the
retention of these references to an eliminated office was intentional
or not. Therefore, in our June NPR, we asked whether the regulations
had validity independent of the existence of RSPO and the jurisdiction
of the Board. In response, Amtrak and APTA, commenters with a direct
interest in the regulations, do not object to their removal. Amtrak
states that Amtrak Commuter has never conducted operations. Thus,
currently, and indeed since January 1, 1983, there have been no
operations to be subsidized or to discontinue. Accordingly, a need for
the rules would only arise if Amtrak Commuter were to begin operations,
which it gives no indication of doing. Indeed, in its comments, Amtrak
refers to the possible repeal of the Amtrak Commuter provisions of the
Rail Passenger Service Act.
In such a situation, we believe that removing the regulations is
appropriate. We do not believe that Congress intended that we should
retain regulations whose statutory basis has in large measure been
eliminated,9 and whose operational basis is currently
nonexistent. Maintaining more than 20 pages of unneeded regulations
incurs administrative expense and causes public confusion.
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\9\ ``When a statute has been repealed, the regulations based on
that statute automatically lose their vitality. Regulations do not
maintain an independent life, defeating the statutory change.''
Aerolineas Argentinas v. U.S., 77 F.3d 1564, 1575 (Fed. Cir. 1996).
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BLE has not given us a positive reason to maintain these
regulations. It argues that the rules should not be eliminated ``unless
there is a demonstrated need for removal.'' As we have indicated, the
elimination of the statutes and the lack of operations by Amtrak
Commuter are sufficient reason. Concerning the subpart B rules, BLE
states, without further elaboration, that they ``govern[] notice to the
public.'' This is true, but there are no operations to give
discontinuance notice of, and nobody claiming to be a passenger or
representing one has objected.
The Board concludes that the removal of part 1157 would not have a
significant effect on a substantial number of small entities.
Currently, there are no commuter operations to which the part 1157
rules apply. APTA was the only party commenting on this issue in
response to the June NPR.10 It ``concurs in the Board's
judgment that the removal of the regulations will not have any adverse
consequences on small entities and will lessen burdens on passenger
rail carriers.''
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\10\ APTA states that it has over 1000 members, including local
mass transit systems, suppliers and manufacturers, and transit
industry consultants.
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This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1157
Railroads, Reporting and recordkeeping requirements, Uniform System
of Accounts.
Decided: August 18, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
PART 1157--[REMOVED]
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended by removing part 1157.
[FR Doc. 97-22810 Filed 8-26-97; 8:45 am]
BILLING CODE 4915-00-P
