52374 Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices

1 To ensure that all parties to the oversight

proceeding are aware of the proceeding we are

instituting by this notice, we will serve a copy of

this notice on all parties on the service list in the

oversight proceeding.

and their allotted times, by October 16,

1997. Speakers’ written statements must

be filed with the Board by October 23,

1997.

ADDRESSES: Send requests to speak and

requested time allotments (an original

and 10 copies) referring to STB Ex Parte

No. 573 to: Surface Transportation

Board, Office of the Secretary, Case

Control Unit, 1925 K Street, N.W.,

Washington, DC 20423–0001.

FOR FURTHER INFORMATION CONTACT:

Joseph H. Dettmar (202) 565–1600. [TDD

for the hearing impaired: (202) 565–

1695.]

SUPPLEMENTARY INFORMATION: The

Surface Transportation Board (Board) is

instituting a proceeding on its own

motion and will hold a public hearing

beginning at 10:00 a.m., on October 27,

1997, at its offices at 1925 K Street,

N.W., Washington, DC, to provide an

opportunity for interested persons,

including carriers, shippers, and

employees, to report on the status of rail

service in the western United States and

to review proposals for solving service

problems. The Board has been made

aware of railroad service problems in

this area of the country [recently

involving the Union Pacific Railroad

Company/Southern Pacific

Transportation Company (UP/SP)]

through formal filings and public

accounts, and, more recently, through

informal communications between

affected persons and the Board’s Office

of Compliance and Enforcement (OCE)

about specific UP/SP service problems,

which OCE has worked with UP/SP to

resolve. Based on this information, we

believe it is appropriate to hold a public

hearing on the issue of rail service in the

western part of the country, problems in

the delivery of that service, and

solutions, both governmental and nongovernmental, that have been offered or

might be offered to remedy these service

problems. The focus of this proceeding

is on the immediate resolution of

existing problems.

This proceeding and this public

hearing are being conducted separate

and apart from the ongoing oversight

proceeding in Union Pacific

Corporation, Union Pacific Railroad

Company, and Missouri Pacific Railroad

Company—Control and Merger—

Southern Pacific Rail Corporation,

Southern Pacific Transportation

Company, St. Louis Southwestern

Railway Company, SPCSL Corp., and

The Denver and Rio Grande Western

Railroad Company, STB Finance Docket

No. 32760 (Sub-No. 21). There, the focus

is on whether the conditions we

imposed in approving the application in

Finance Docket No. 32760 have been

successful in resolving the competitive

problems that we found would exist as

a result of our approval of the UP/SP

control transaction in the absence of

those conditions. Parties to the oversight

proceeding have, however, commented

on service problems on the UP/SP

system, and both UP/SP and The

Burlington Northern and Santa Fe

Railway Company, in their most recent

quarterly reports, filed October 1, 1997,

in the oversight proceeding, have

separately put forth proposals that, in

their view, would lead to a resolution of

the existing service problems. Given the

immediacy of these service problems

and the national, as well as regional,

interest in their resolution, we are

instituting this proceeding to focus

specifically on the rail service problems

that have arisen in the western part of

the country. 1

We encourage interested persons to

coordinate the presentation of their

points of view by selecting of a single

individual to appear at the hearing on

behalf of their common interests so that

the opportunity for input at the hearing

can be maximized. Persons wishing to

appear and make a statement at the

hearing should submit a request for time

to speak on or before October 9, 1997.

The Board notes that, in the interest of

a focused hearing, it must necessarily

limit the number of persons allowed to

speak. At this hearing, we intend to

concentrate more on operational,

resource, and customer service matters

than on legal issues, and it would be

helpful if speakers are individuals who

are able to address such matters. The

Board will issue a schedule for the

October 27, 1997 hearing, along with a

list of speakers and their allotted times,

by October 16, 1997. Speakers’ written

statements of their presentations must

be filed with the Board by October 23,

1997.

Notice of the October 27, 1997 hearing will

be published in the Federal Register.

Decided: October 2, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

[FR Doc. 97–26579 Filed 10–6–97; 8:45 am]

BILLING CODE 4915–00–U

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33469]

Application of the National Railroad

Passenger Corporation Under 49

U.S.C. 24308(a)—Union Pacific

Railroad Company and Southern

Pacific Transportation Company

AGENCY: Surface Transportation Board,

DOT.

ACTION: Order and request for

comments.

SUMMARY: The Board is seeking

comments from interested persons on

the application of the National Railroad

Passenger Corporation (Amtrak) under

49 U.S.C. 24308(a), formerly section

402(a) of the Rail Passenger Service Act

(the Act), for an order determining

under the law the nature and extent of

the duty of the Union Pacific Railroad

Company (UP) and its affiliate, Southern

Pacific Transportation Company (SP)

(collectively, UP/SP), to allow Amtrak

to use UP/SP’s tracks and facilities for

the carriage of express. The Board is

also ordering UP/SP to continue to make

its tracks and facilities available to

Amtrak, as directed herein, while this

proceeding is pending.

DATES: Written notices of intent to

participate are due by October 14, 1997.

Shortly thereafter, we will serve a

preliminary service list and request for

written corrections. By October 31,

1997, we will serve any necessary

corrections to the service list. Opening

comments are due by November 10,

1997. Reply comments are due by

November 25, 1997.

ADDRESSES: Send an original and 10

copies of notices of intent to participate

and comments, referring to ‘‘STB

Finance Docket No. 33469,’’ to: Surface

Transportation Board, Office of the

Secretary, Case Control Unit, 1925 K

Street, N.W., Washington, DC 20423.

Opening and reply comments must be

served on the persons identified as

‘‘parties of record’’ on the service list.

FOR FURTHER INFORMATION CONTACT:

Joseph H. Dettmar, (202) 565–1600.

[TDD for the hearing impaired: (202)

565–1695.]

SUPPLEMENTARY INFORMATION: This

proceeding raises questions about the

definition of ‘‘express’’ traffic and the

extent to which freight railroads are

required to allow Amtrak to use their

facilities to carry express. Freight

railroads must permit Amtrak to operate

over their lines. The provisions of 49

U.S.C. 24305(a)(1) and 24305(c)(2)

authorize Amtrak to operate intercity
Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices 52375

1Section 402(a) was originally codified at 45

U.S.C. 562(a). In Pub. L. No. 103–272, 108 Stat. 745,

enacted on July 5, 1994, section 402(a) was

recodified in its present form as 49 U.S.C. 24308(a).

In section 205 of the ICC Termination Act of 1995,

Pub. L. No. 104–88, 109 Stat. 803, enacted

December 29, 1995, references to the ‘‘Interstate

Commerce Commission’’ in this and other statutory

provisions were replaced with references to the

Surface Transportation Board.

2After we resolve this matter, we may also be

called upon to address other issues relating to the

facilities that UP/SP must provide to Amtrak, such

as the incremental cost of access and the terms of

payment. At this point, however, we are focusing

only on the narrow issue raised. We expect that any

final compensation methodology that we may

prescribe would be made retroactive to October 1,

1997.

3Amtrak asserts that passenger trains historically

operated ‘‘with 30 to 40 mail and express cars,’’ and

that, ‘‘As recently as 1959, intercity passenger trains

derived as much as 46% of their revenue from mail

and express. * * *’’

4Amtrak asserts that Board precedent does not

limit the commodities that can qualify as express.

5 In its response, Amtrak asserts that its

anticipated expansion of operations will not

produce operational problems.

and commuter rail passenger

transportation and to transport mail and

express. In addition, the provisions of

49 U.S.C. 24306(a) and 24101(c)(1)(B)

direct Amtrak to seek to increase its

revenues from the transportation of mail

and express. The statute, however, does

not define ‘‘express.’’

Historically, in addition to its

passenger service, Amtrak has carried

what it and UP/SP appear to agree is

express traffic. In recent months,

however, Amtrak has taken steps that it

indicates are necessary to improve its

financial condition by carrying

additional volumes of freight that it

describes as express. Amtrak’s financial

condition is well known.

UP/SP has resisted Amtrak’s efforts to

expand its freight operations. UP/SP’s

position is that the type of traffic that

Amtrak contemplates now handling

falls into the category of general freight

rather than express as intended under

the law. UP/SP also argues that the

expanded freight operations that Amtrak

contemplates would create operational

and logistical problems for the railroads

over whose tracks Amtrak operates, as

well as the towns and cities through

which Amtrak operates. The recent

operational difficulties that have been

experienced by UP/SP are well known,

as are the concerns of many towns and

cities about train traffic in general.

Because Amtrak and UP/SP could not

resolve the issue privately, by

application filed September 16, 1997,

under 49 U.S.C. 24308(a), formerly

section 402(a) of the Act,1 Amtrak seeks

an order that: (1) requires UP/SP to

continue to make available to Amtrak

the facilities necessary for it to continue

to transport express on its trains while

this proceeding is pending; and (2)

establishes a procedural schedule

‘‘leading ultimately to entry of a final

order determining that Amtrak’s

transport of express traffic is necessary

to carry out the purposes of the Act, and

requiring UP/SP to make available to

Amtrak the facilities and services

needed to allow Amtrak trains to

transport express.’’

In its application, Amtrak states that

its existing general agreement governing

its relationship with UP/SP, which was

scheduled to expire on September 30,

1997, has been extended through

October 31, 1997. However, Amtrak

asserts, UP/SP is unwilling to extend

beyond September 30, 1997, a

‘‘provision in Amtrak’s agreements with

UP/SP that gives Amtrak the right to

carry express on Amtrak’s trains to the

extent authorized by the Act.’’

UP/SP filed a reply on September 23,

1997. In its reply, UP/SP takes issue

with Amtrak’s contentions that the

freight operations that Amtrak

contemplates are operationally feasible,

and that they are consistent with the

express service provisions of the Act.

UP/SP states in that reply that it does

not object to entry of an order

preserving the status quo while

Amtrak’s application is being reviewed,

as long as the order does not allow

Amtrak to effect a ‘‘blanket

authorization for unlimited expansion

of its commodity-hauling operation.’’

On September 26, 1997, Amtrak

sought leave to file a tendered response

to UP/SP’s reply, which UP/SP has

opposed. Amtrak asserts that it should

be permitted to file the response

because it could not have reasonably

anticipated the arguments that UP/SP

would be advancing in its reply. We do

not find that assertion credible; indeed,

given the extensive relief that Amtrak

has sought, UP/SP’s reply raises the

types of arguments we would have

expected it to present. Nevertheless, we

will accept and consider Amtrak’s

response, and UP/SP’s opposition to it,

in the interest of developing a complete

record.

Discussion and Conclusions

Under 49 U.S.C. 24308(a)(2), we have

authority to prescribe the terms and

compensation for Amtrak’s use of

facilities owned by, or receipt of

services to be provided by, freight

railroads in connection with Amtrak’s

operation over their track, if (1) the

parties cannot agree and (2) such

prescription is necessary to carry out the

purposes of the Act. Here, it is apparent

that the parties cannot agree, as Amtrak

has asked us to declare the nature and

extent of UP/SP’s duty to make its

facilities available to Amtrak for the

carriage of express, which is an

important issue that bears on the

fundamental purposes of the Act.

Accordingly, we are commencing a

proceeding to resolve this dispute.2

Because of the potentially broad impact

of any ruling that we might issue in this

matter, we are publishing this notice in

the Federal Register soliciting

comments from persons that may be

affected: other railroads and railroad

employees, potential users, and,

particularly insofar as operational

matters are concerned, cities and towns

and the Secretary of Transportation.

As noted, this dispute revolves

around the meaning of the statutory

term ‘‘express’’ in the Act, and whether

there are limits on the type and quantity

of freight traffic that Amtrak may carry

consistent with the statutory

authorization to carry express. Amtrak

argues that there are no ‘‘defined limits’’

to its authority to transport express

(Response at 2),3 and that UP/SP is

improperly taking the position that: (1)

The Act does not give Amtrak the right

to transport carload or truckload

shipments of express; (2) certain

commodities transported by Amtrak do

not constitute express; 4 and (3) Amtrak

may be subjected to overall footage

limits on individual trains carrying

express cars.

UP/SP argues that Amtrak’s efforts to

solicit carload traffic (such as carloads

of beer), and to expand considerably the

length of its trains, are inconsistent with

the statutory intent that transportation

of mail and express traffic be ancillary

to Amtrak’s provision of passenger

service. UP/SP also argues that

expansion of Amtrak’s non-passenger

services would produce serious

operational and logistical problems at

the various cities and towns through

which UP/SP operates.5

Commenters should address these

issues. In addition to the operational

concerns and the commodity/train

length issues raised by UP/SP,

commenters should address the

legislative intent in enacting the Act,

and, in particular, the extent to which

Congress intended that Amtrak’s

express services be ancillary to its

passenger services. We must note that

we expect all commenters to express

their fully developed positions in their

opening comments, and not to back-load

their filings by reserving their major

points to their reply comments.

Amtrak has asked us that, while this

proceeding is pending, we issue an

interim order that will require UP/SP to
52376 Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices

6 In support of its argument that the Board must

order UP/SP to open its facilities, on an interim

basis, to whatever Amtrak decides to characterize

as express, Amtrak states that it has already

purchased or committed to obtain additional

equipment, and has entered into agreements with

customers to carry additional freight. The Board

notes in this regard that any party that takes action

assuming in advance that a difficult legal issue will

be resolved in its favor assumes whatever risks are

associated with such action.

7See Application of the National Railroad

Passenger Corp. Under 49 U.S.C. 24308(a)—Order

to Require Service and Set Compensation Terms,

STB Finance Docket No. 32911 (STB served Apr.

30, 1996).

continue to make its facilities available

to Amtrak for handling express traffic so

that Amtrak will be able ‘‘to continue to

serve shippers for whom it currently

transports both carload and other

shipments, and for whom it has

commitments to do so after October 1.’’

Amtrak’s objective is to expand its

freight business so that it can obtain

increased revenues during the pendency

of the proceeding. In its application,

Amtrak indicates that it wants us to

facilitate this objective by preserving the

status quo, which, in Amtrak’s view,

means accepting its position that there

are not and have never been any limits

on its authority to carry what it

determines to be express. Response at

5–6.6 In its response, Amtrak indicates

that it will accept an interim 18-car train

limit on the number of cars in its trains,

on the ground that UP/SP has already

agreed that 18-car trains are

operationally feasible and have been

typically operated in the past. In its

most recent filing, UP/SP disputes

Amtrak’s statements about the

feasibility of 18-car trains at certain

locations, such as Reno, Nevada, and

Oakland, California.

We cannot, in an interim order, direct

UP/SP to allow Amtrak access for

whatever traffic Amtrak declares is

express. The limits on Amtrak’s freight

traffic authority are precisely what we

are being asked to resolve in the case,

and that is the issue on which we are

now seeking public comment. Typically

in these proceedings,7 we require that

the parties maintain the status quo

pending our resolution of the matter.

However, because of the variety of

potential combinations in the Amtrak

operations that have been or might have

been conducted in the past at each of

the numerous stations that Amtrak

serves (regarding, for example, train

consist issues), an order simply

directing the parties to maintain the

‘‘factual’’ status quo would likely

produce uncertainty and continued

litigation. Therefore, we will establish a

numerical equipment limitation for the

interim that appears to be consistent

with the representations of both parties.

Except where it is operationally

infeasible, UP/SP generally may not

limit Amtrak’s access to less than 18

cars. Consistent with Amtrak’s

representation that it does not need to

operate more than 600 feet of express

cars during the interim period, however,

UP/SP may limit Amtrak to 9 express

cars per train. Thus, the trains that UP/

SP must permit Amtrak to operate over

UP/SP’s lines may be as long as 18 cars,

and may contain as many as 9 express

cars. This interim order, we stress, is not

intended to prejudge, in any way, the

matters on which we have sought

comment, but is simply designed as a

practical solution while the case is

pending.

This decision will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

It is ordered:

1. On or after September 30, 1997,

UP/SP will preserve on an interim basis

the current provisions in the parties’

agreement governing express and the

practices thereunder as provided in this

decision and will provide services,

tracks, and facilities to Amtrak in

accordance with those provisions and

practices.

2. A proceeding is instituted to

investigate the extent of UP/SP’s

obligation under the Act to allow

Amtrak to use UP/SP’s lines and

facilities for the carriage of express.

3. Commenters shall comply with the

procedural schedule set out earlier.

4. Amtrak’s request for leave to file its

response is granted.

5. This decision is effective on its date

of service.

Decided: September 29, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

[FR Doc. 97–26541 Filed 10–6–97; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF THE TREASURY

Submission to OMB for Review;

Comment Request

September 29, 1997.

The Department of Treasury has

submitted the following public

information collection requirement(s) to

OMB for review and clearance under the

Paperwork Reduction Act of 1995,

Public Law 104–13. Copies of the

submission(s) may be obtained by

calling the Treasury Bureau Clearance

Officer listed. Comments regarding this

information collection should be

addressed to the OMB reviewer listed

and to the Treasury Department

Clearance Officer, Department of the

Treasury, Room 2110, 1425 New York

Avenue, NW., Washington, DC 20220.

Internal Revenue Service (IRS)

OMB Number: 1545–0052.

Form Number: IRS Forms 990–PF and

4720.

Type of Review: Extension.

Title: Return of Private Foundation or

Section 4947(a)(1) Nonexempt

Charitable Trust Treated as a Private

Foundation (990–PF); and Return of

Certain Excise Taxes on Charities and

Other Persons Under Chapters 41 and

42 of the Internal Revenue Code (4720).

Description: Internal Revenue Code

(IRC) section 6033 requires all private

foundations, including section

4947(a)(1) trusts treated as private

foundations, to file an annual

information return. Section 53.4940–

1(a) of the Income Tax Regulations

requires that the tax on net investment

income be reported on the return filed

under section 6033. Form 990-PF is

used for this purpose. Section 6011

requires a report of taxes under Chapter

42 of the Code for prohibited acts by

private foundations and certain related

parties. Form 4720 is used by

foundations and/or persons to report

prohibited activities in detail and pay

the tax on them.

Respondents: Not-for-profit

institutions.

Estimated Number of Respondents/

Recordkeepers: 52,214.

Estimated Burden Hours Per

Respondent/Recordkeeper: