766 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

1A 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). 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the finding 

of SIP inadequacy would not apply in 

Indian country located in the State, and 

EPA notes that it will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

Statutory Authority 

The statutory authority for this action 

is provided by sections 110 and 301 of 

the CAA, as amended (42 U.S.C. 7410 

and 7601). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution, Ozone, Kansas, State 

Implementation Plan. 

Dated: December 27, 2010. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–15 Filed 1–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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. 

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 


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2The 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. 

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

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, email, 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 


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768 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

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 § 1011.4 by adding 

paragraph (a)(10) to read as follows: 

§ 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 § 1034.2 to read as follows: 

§ 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 efiling 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 § 1102.2 by adding 

paragraph (b)(4) to read as follows: 


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§ 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-VERIFICATIONSERVICE-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 § 1104.12 by revising 

paragraph (b) to read as follows: 

§ 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 

§ 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 § 1115.2 by revising 

paragraphs (e) and (f), and adding 

paragraphs (h) and (i) to read as follows: 

§ 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] 

BILLING CODE 4915–01–P 


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