[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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of commuter rail service, because the statutes have been repealed.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law repealed and not substantively reenacted by this Act.''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these regulations were based, at least in part, on repealed statutes.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,<SUP>1</SUP> 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).
---------------------------------------------------------------------------

    \1\ See that document for a more detailed description of the 
statutory setting for the part 1157 regulations.
---------------------------------------------------------------------------

    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).<SUP>2</SUP> 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.<SUP>3</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).<SUP>4</SUP> 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).<SUP>5</SUP> (The post-NERSA regulatory 
response will be discussed in connection with subpart B, infra.)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.'' 
<SUP>6</SUP> 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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,<SUP>7</SUP> and subpart B, comprising the 
new discontinuance notice procedures.
---------------------------------------------------------------------------

    \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.)
---------------------------------------------------------------------------

    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.<SUP>8</SUP>
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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,<SUP>9</SUP> and whose operational basis is currently 
nonexistent. Maintaining more than 20 pages of unneeded regulations 
incurs administrative expense and causes public confusion.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.<SUP>10</SUP> 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.''
---------------------------------------------------------------------------

    \10\ APTA states that it has over 1000 members, including local 
mass transit systems, suppliers and manufacturers, and transit 
industry consultants.
---------------------------------------------------------------------------

    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