[Federal Register Volume 62, Number 233 (Thursday, December 4, 1997)]
[Proposed Rules]
[Pages 64193-64194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31795]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board.

49 CFR Chapter X

[STB Ex Parte No. 574]


Safe Implementation of Board-Approved Transactions

AGENCY: Surface Transportation Board.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Board seeks comments from all interested persons on the 
extent to which railroads should be required to provide detailed 
information setting forth the manner in which they intend to safely 
implement authority granted by the Board in proceedings subject to the 
Board's jurisdiction.

DATES: Notices of intent to participate are due by December 24, 1997. 
Shortly thereafter, a list of participants will be issued. Comments are 
due by January 19, 1998. Replies are due by February 12, 1998.

ADDRESSES: Send an original and 10 copies of notices of intent to 
participate and pleadings referring to STB Ex Parte No. 574: Surface 
Transportation Board, Office of the Secretary, Case Control Unit, 1925 
K Street, N.W., Washington, DC 20423.
    Once the list of participants has been issued by the Board, send 
one copy of each comment and each reply 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: The rail transportation policy (RTP) (49 
U.S.C. 10101), which was adopted in the Staggers Rail Act of 1980 and 
amended in the ICC Termination Act of 1995, establishes the basic 
policy directives against which all of the statutory provisions we 
administer must be weighed. The RTP provides, in relevant part, that, 
``[i]n regulating the railroad industry, it is the policy of the United 
States Government * * * to promote a safe and efficient rail 
transportation system'' * * * [by allowing rail carriers to] operate 
transportation facilities without detriment to the public health and 
safety * * *.'' The rail transportation policy applies to all 
transactions subject to Board jurisdiction.
    Over the years, the Board and its predecessor, the Interstate 
Commerce Commission (ICC), have considered the issue of safety along 
with other relevant issues in individual cases. For example, the ICC 
and the Board, in consultation with the Federal Railroad Administration 
(FRA), which has primary responsibility over railroad safety 
enforcement, have routinely considered safety in their environmental 
review of all rail mergers, acquisitions, line constructions, and 
similar transactions. In 1993, the ICC denied an application because 
the agency believed that no conditions could sufficiently mitigate the 
unsafe conditions arising out of the proposed construction of the rail 
line in Construction and Operation--Indiana and Ohio Ry. Co., 9 
I.C.C.2d 783 (1993). In a similar vein, we routinely address safety 
issues, with the advice of the FRA, in the context of rail 
embargoes.<SUP>1</SUP>
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    \1\ In the embargo context, for example, a shipper might dispute 
a railroad's contention that it is temporarily unable to provide 
service because of unsafe operating conditions. The Board, in a 
recent decision, declared that, in such situations, it would secure 
an inspection from an FRA-certified safety inspector before 
directing service over a line embargoed for safety reasons. Service 
Obligations Over Excepted Track, STB Ex Parte No. 564 (STB served 
Oct. 22, 1997).
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    Recently, in a pending railroad merger proceeding, we undertook to 
address safety issues in a more systematic way. Specifically, in 
response to a request in the ongoing Conrail Acquisition proceeding by 
the FRA, we required the applicant railroads in that case to prepare 
detailed plans addressing how they propose to integrate their 
operations to ensure continued safety if the merger is approved by the 
Board. CSX Corporation and CSX Transportation, Inc., Norfolk Southern 
Corporation and Norfolk Southern Railway Company--Control and Operating 
Leases/Agreements--Conrail, Inc. and Consolidated Rail Corporation, STB 
Finance Docket No. 33388, Decision No. 52 (STB served Nov. 3, 1997) 
(Conrail Acquisition). In our decision, we explained that the 
railroads' submissions would be made part of the environmental record 
in that proceeding and dealt with in the ongoing environmental review 
process in that case. We stated that the railroads' submissions, which 
are due to be filed December 3rd, will be incorporated in a separate 
section of the Draft Environmental Impact Statement (DEIS) that is to 
be issued by the end of the year. We requested the FRA to provide us 
with its analysis of the plans, and invited comments from all other 
interested persons, during the 45-day comment period that will be 
provided on the DEIS. After review of these analyses and comments, the 
Board's environmental staff will address safety implementation issues 
in the Final

[[Page 64194]]

Environmental Impact Statement for the proposed Conrail Acquisition. We 
will then consider the full environmental record, including the 
information concerning Applicants' safety implementation plans, in 
arriving at our decision in the Conrail Acquisition proceeding.
    The approach outlined above will assure our ability to fully 
address safety implementation issues in the proposed Conrail 
Acquisition proceeding. Having developed a vehicle by which to evaluate 
the impact on rail safety of one transaction, we believe it is 
appropriate to consider the advisability of promulgating a rule to 
extend this process to other rail transactions subject to the Board's 
jurisdiction. Accordingly, we seek public comment on the question of 
how the Board should proceed in this regard in exercising its 
jurisdiction over such transactions.
    We are aware that the FRA has suggested that rules of general 
applicability might be appropriate for future mergers. In our view, the 
process adopted in STB Finance Docket No. 33388, which provides for 
full utilization of the expertise of both the Board and the FRA, 
establishes a mechanism for handling future merger cases. It might also 
have wider applicability to other types of transactions subject to the 
Board's jurisdiction; alternatively, different procedures for 
implementing the Board's responsibilities under the RTP to consider 
matters bearing on the safe implementation of transactions might be 
preferable outside the merger area. The administrative process permits 
the Board to proceed either by rule or on a case-by-case basis, and to 
address some kinds of transactions by rule and some by reliance on the 
development of precedent.
    Accordingly, because the questions at issue here are significant 
and of broad interest, we are initiating sua sponte this proceeding to 
address the extent to which railroads should be required to provide 
detailed information setting forth the manner in which they intend to 
safely implement authority granted by the Board in proceedings subject 
to the Board's jurisdiction. We specifically seek the views of the FRA 
and of any other interested persons on these issues. We seek public 
comments on whether we should proceed broadly or on a case-by-case 
basis, and on specific standards and procedures that the Board could 
adopt by rule to assure the safe implementation of rail transactions 
subject to our jurisdiction. Parties filing comments should indicate 
whether their specific recommendations would apply to all transactions 
or only to certain types and, if the latter, which ones.
    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 proceed on a case-by-case basis, as we have done 
in the Conrail Acquisition proceeding.

    Decided: November 26, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-31795 Filed 12-3-97; 8:45 am]
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