Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Proposed Rules 27253

1A copy of each diskette submitted to the Board

should be provided to any other party upon request.

2The using railroad must compensate the

incumbent railroad for the use of its tracks, at a

level to be determined by the carriers or fixed by

the Board. 49 U.S.C. 11324(c), 11102(a), and

11123(b)(2).

Subpart F—Specific Categories of

Costs

B. In § 413.100, paragraph (c)(2)(vi) is

revised to read as follows:

§ 413.100 Special treatment of certain

accrued costs.

(c) Recognition of accrued costs.

* * * * *

(2) Requirements for liquidation of

liabilities.

* * * * *

(vi) FICA and other payroll taxes.—

(A) General rule. The provider’s share of

FICA and other payroll taxes that the

provider becomes obligated to remit to

governmental agencies is included in

allowable costs only during the cost

reporting period in which payment

(upon which the payroll taxes are based)

is actually made to the employee. For

example, payroll taxes applicable to

vacation benefits are not to be accrued

in the period in which the vacation

benefits themselves are accrued but

rather are allowable only in the period

in which the employee takes the

vacation.

(B) Exception. If payment would be

made to an employee during a cost

reporting period but for the fact the

regularly scheduled payment date is

after the end of the period, costs of

accrued payroll taxes related to the

portion of payroll accrued through the

end of the period, but paid to the

employee after the beginning of the new

period, are allowable costs in the year

of accrual, subject to the liquidation

requirements specified in paragraph

(c)(2)(i) of this section.

* * * * *

(Catalog of Federal Domestic Assistance

Program No. 93.773, Medicare—Hospital

Insurance)

Dated: January 26, 1998.

Nancy-Ann Min DeParle,

Administrator, Health Care Financing

Administration.

Dated: April 8, 1998.

Donna E. Shalala,

Secretary.

[FR Doc. 98–13110 Filed 5–15–98; 8:45 am]

BILLING CODE 4120–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1146

[STB Ex Parte No. 628]

Expedited Relief for Service

Inadequacies

AGENCY: Surface Transportation Board,

DOT.

ACTION: Notice of Proposed Rulemaking.

SUMMARY: Pursuant to its decision in

Review of Rail Access and Competition

Issues, STB Ex Parte No. 575 (STB

served Apr. 17, 1998) (‘‘Review’’), the

Board is instituting a proceeding to

solicit comments on proposed rules that

would establish expedited procedures

for shippers to obtain alternative service

from another rail carrier when the

incumbent carrier cannot properly serve

shippers. The Board requests that

persons intending to participate in this

proceeding notify the agency of that

intent. A separate service list will be

issued based on the notices of intent to

participate that the Board receives.

DATES: Notices of intent to participate in

this proceeding are due May 28, 1998.

Comments on this proposal are due June

15, 1998. Replies are due July 15, 1998.

ADDRESSES: An original plus 12 copies

of all comments and replies, referring to

STB Ex Parte No. 628, must be sent to

the Office of the Secretary, Case Control

Unit, ATTN: STB Ex Parte No. 628,

Surface Transportation Board, 1925 K

Street, NW., Washington, DC 20423–

0001.

Copies of the written comments will

be available from the Board’s contractor,

D.C. News and Data, Inc., located in

Room 210 in the Board’s building. D.C.

News can be reached at (202) 289–4357.

The comments will also be available for

viewing and self copying in the Board’s

Microfilm Unit, Room 755.

In addition to an original and 12

copies of all paper documents filed with

the Board, the parties shall submit their

pleadings, including any graphics, on a

3.5-inch diskette formatted for

WordPerfect 7.0 (or in a format readily

convertible into WordPerfect 7.0). All

textual material, including cover letters,

certificates of service, appendices and

exhibits, shall be included in a single

file on the diskette. The diskettes shall

be clearly labeled with the filer’s name,

the docket number of this proceeding,

STB Ex Parte No. 628, and the name of

the electronic format used on the

diskette for files other than those

formatted in WordPerfect 7.0. All

pleadings submitted on diskettes will be

posted on the Board’s website

(www.stb.dot.gov). The electronic

submission requirements set forth in

this notice supersede, for the purposes

of this proceeding, the otherwise

applicable electronic submission

requirements set forth in the Board’s

regulations. See 49 CFR 1104.3(a), as

amended in Expedited Procedures for

Processing Rail Rate Reasonableness,

Exemption and Revocation Proceedings,

STB Ex Parte No. 527, 61 FR 52710, 711

(Oct. 8, 1996), 61 FR 58490, 58491 (Nov.

15, 1996).1

FOR FURTHER INFORMATION CONTACT:

Joseph H. Dettmar, (202) 565–1600.

[TDD for the hearing impaired: (202)

565–1695.]

SUPPLEMENTARY INFORMATION: In STB Ex

Parte No. 575, the Board conducted two

days of informational hearings, on April

2 and 3, 1998, to examine issues of rail

access and competition in today’s

railroad industry, and the statutory

remedies and agency regulations and

procedures that relate to those matters.

As a result of those hearings, we

announced, inter alia, that we would

begin a rulemaking proceeding to

consider revisions to our rules to

provide shippers receiving poor service

greater opportunity to obtain service

from an additional carrier.

Overview

While the Board lacks general

authority to require an unwilling

railroad to permit physical access over

its lines to the trains and crews of

another railroad, it may direct that

result in certain situations: under 49

U.S.C. 11324(c), as a condition to the

incumbent’s merger with another

railroad; under 49 U.S.C. 11102(a), to

serve terminal facilities when it would

be in the public interest; or, under 49

U.S.C. 11123(a), to serve any facilities

for a limited period of time (not more

than 270 days) because of the carrier’s

inability or failure to provide its

shippers with adequate service.2 The

Board may also direct an incumbent

railroad to afford access indirectly,

either by prescribing alternative through

routes under 49 U.S.C. 10705(a)

(requiring the incumbent to interline

traffic with another railroad over a

designated interchange and thereby

create an alternative route and rates for

a shipper’s traffic) or by requiring

reciprocal switching under 49 U.S.C.

11102(c) (where, for a fee, the

incumbent must switch cars to and from

another railroad so that the latter, even

though it cannot physically reach a

shipper, can constructively offer

alternative single-line service).

The access remedies under sections

11102 and 10705—terminal trackage

rights, reciprocal switching, and

alternative through routes—are now

invoked through the ‘‘competitive

access’’ regulations, 49 CFR part 1144,

and, to obtain relief, parties must show
27254 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Proposed Rules

3 49 CFR 1144.5(a); Intramodal Rail Competition,

1 I.C.C.2d 822 (1985), aff’d sub nom. Baltimore Gas

& Elec. Co. v. United States, 817 F.2d 108 (D.C. Cir.

1987). Under existing case law, parties must show

that the incumbent carrier has either: (1) Used its

market power to extract unreasonable terms, or (2)

because of its monopoly position, shown a

disregard for the shipper’s needs by rendering

inadequate service. Midtec Paper Corp. v. Chicago

& N.W. Transp. Co., 3 I.C.C. 2d 171 (1986), aff’d sub

nom. Midtec Paper Corp. v. United States, 857 F.2d

1487 (D.C. Cir. 1988).

4As we explained in Review, slip op. at 6–7, this

decision does not address whether to revise the

competitive access regulations with respect to

competitive issues not related to quality of service.

We have directed the railroads and shippers to

meet, under the supervision of an Administrative

Law Judge, to identify mutually acceptable

modifications to facilitate greater access in

appropriate circumstances, and to report back to us

by August 3, 1998. We are confident that shippers

and railroads can find common ground on this

issue. See Review of Rail Access and Competition

Issues, STB Ex Parte No. 575 (STB served May 4,

1998).

5STB Service Order No. 1518, Joint Petition for

Service Order (STB served Oct. 31 and Dec. 4, 1997,

and Feb. 17 and 25, 1998).

6Although the remedies under sections 11102

and 10705 are not statutorily limited in duration,

we remind commenters that the relief contemplated

by this proposal is intended to respond to service

problems, and not to provide permanent responses

to perceived competitive issues.

7Because the proposed predicate for relief is

different than that for ‘‘competitive’’ access under

49 CFR 1144.5(a), and to avoid confusion, we do

not propose to amend the competitive access

regulations, as we had suggested in Review, but

rather to adopt a new, discrete set of regulations to

address relief for service inadequacies, 49 CFR part

1146.

8We note that section 11123(b)(1) gives us broad

authority to afford relief without regard to the

administrative adjudication procedures in 5 U.S.C.

551 et seq.

that the incumbent rail carrier has acted

in a way ‘‘that is contrary to the

competition policies of 49 U.S.C.

10101[] or is otherwise

anticompetitive.’’ 3 At the Ex Parte 575

hearings, shippers complained that the

‘‘anticompetitive conduct’’ standard of

the regulations is too restrictive and

effectively precludes alternative service

in those situations where it is most

urgently needed—where shippers (such

as those poorly served during the recent

service emergency in the West) are not

receiving the level of service needed

from their incumbent carrier. At the

hearings, the rail industry concurred

that the Board should be able to remedy

such service failures more quickly and

effectively.

Accordingly, we seek comment on the

proposed rules set forth below to

provide expedited relief for

demonstrated poor service.4

Choice of Remedies

To address these service issues more

effectively, we propose rules under

which parties may seek alternative rail

service under either the access

provisions of sections 11102 and 10705,

or the emergency service provisions of

section 11123. While section 11123 has

typically been used to address regional

service emergencies, such as the one

recently experienced in the West,5 we

believe it can also be used to afford

more localized relief to shippers; that

section broadly permits Board

intervention to remedy service

deficiencies having ‘‘substantial adverse

effects’’ on shippers, or where a rail

carrier ‘‘cannot transport the traffic

offered to it in a manner that properly

serves the public.’’ 49 U.S.C. 11123(a).

Moreover, permitting shippers to

proceed either under sections 11102 or

10705, on the one hand, or section

11123, on the other, affords greater

flexibility and broadens the potential for

regulatory relief. For example, trackage

rights access under section 11102(a),

while not statutorily limited in

duration, is limited to an incumbent

railroad’s terminal facilities, and

therefore is not available for shippers

that are not located at or near terminal

areas. In contrast, remedies under

section 11123(a), although limited to

270 days, are potentially available for

shippers located on any part of the

incumbent carrier’s network; this

section also affords the Board more

latitude to craft a variety of measures to

remedy any particular service

situation.6

Standard for Relief

Whichever remedies are sought,

however, the predicate for relief would

be the same: that, over an identified

period of time, there has been a

substantial, measurable deterioration in

the rail service provided by the

incumbent carrier.7 We do not think it

necessary or appropriate to propose a

list of particular factors—or a formulaic

weighing of such factors—that shippers

must use to make that assessment, or to

propose a specific test period. Each

shipper has its own particular service

needs and experiences, and carrier

difficulties may vary. Our standard of

relief must be flexible enough to permit

us to address varying circumstances.

Commenters may wish to address this

issue.

We caution that the proposed rules

are not meant to redress minor service

disruptions. Access—particularly that

which would compel physical access by

another railroad over an incumbent’s

lines—is a serious remedy with

potentially significant operational,

safety, and financial consequences for

the involved carriers, and we intend

that the rules be used to remedy only

substantial service problems that cannot

readily be resolved by the incumbent

railroad. Accordingly, we propose to

require shippers to: (1) First discuss and

assess with their incumbent carrier

whether adequate service can be

restored within a reasonable period of

time that is consistent with the

shipper’s needs and, if not, outline in its

request for relief why that is the case;

and (2) obtain from another railroad the

necessary commitment—should it be

afforded access—to meet the shipper’s

service needs, and describe the carrier’s

plan to do so safely and without

degrading service to its existing

customers or unreasonably interfering

with the incumbent’s overall ability to

provide service.

Expedited Procedures

The proposed rules include expedited

procedures because of the usually

urgent nature of serious service

problems. Instead of the more timeconsuming complaint process, parties

may seek relief by petition.8 We propose

that the incumbent carrier be required to

reply to such a petition within five

business days, and that the shipper, if

it wishes to file a rebuttal, be required

to do so no more than three business

days later.

If relief is granted under these rules,

once the incumbent carrier can

demonstrate that it has restored, or is

prepared to restore, adequate service, it

may file a petition to terminate that

relief. We would discourage an

incumbent carrier from filing such a

petition too hastily after the Board’s

order, however, as the objective in a

proceeding of this nature is to provide

shippers with a needed degree of

certainty of adequate rail service.

For the same reason, we propose that

satisfying the standard for relief under

section 11123 ordinarily would

establish a presumption that the

incumbent’s inability to provide

adequate service will last beyond the

initial 30-day period, and thus will

provide the basis for a subsequent order

extending relief beyond the initial 30-

day period. However, if the incumbent

carrier can show that it is prepared to

provide adequate service, it may seek to

have the relief terminated within the

first 30 days.

Should the incumbent carrier file a

petition to terminate relief, replies are to

be filed in five business days, and the

carrier may file any rebuttal three

business days afterward. The Board will

then assess all relevant factors in

determining what action would be

appropriate.
Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 / Proposed Rules 27255

We invite comment on all aspects of

this proposal. Any person that wishes to

participate as a party of record in this

matter must notify us of this intent by

May 28, 1998. In order to be designated

a party of record, a person must satisfy

the filing requirements outlined in the

ADDRESSES section. We will then

compile and issue a service list. Copies

of comments and replies must be served

on all persons designated on the list as

a party of record. Comments on the

proposal are due June 15, 1998; replies

are due July 15, 1998.

A copy of this decision is being

served on all parties on the service list

in Ex Parte No. 575. This decision will

serve as notice that persons who were

parties of record in the Ex Parte 575

proceeding will not be placed on the

service list in the Ex Parte 628

proceeding unless they notify us of their

intent to participate therein.

The Board preliminarily certifies that

the proposed rules, if adopted, would

not have a significant effect on a

substantial number of small entities.

While the proposed rules, if adopted,

may ease the burdens on obtaining

alternative rail service in the limited

situations described, we do not expect

them to affect a substantial number of

small entities. The Board, however,

seeks comments on whether there

would be effects on small entities that

should be considered.

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 1146

Administrative practice and

procedures, Railroads.

Decided: May 12, 1998.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, title 49, chapter X, Part 1146,

consisting of § 1146.1, is proposed to be

added to read as follows:

PART 1146—EXPEDITED RELIEF FOR

SERVICE INADEQUACIES

1. The authority for part 1146 will

read as follows:

Authority: 49 U.S.C. 721, 11102, 11123,

and 10705.

§ 1146.1 Prescription of Alternative Rail

Service

(a) General. Alternative rail service

will be prescribed under 49 U.S.C.

11102(a), 11102(c), 10705(a), or

11123(a), if the Board determines that,

over an identified period of time, there

has been a substantial, measurable

deterioration in rail service provided by

the incumbent carrier.

(b)(1) Petition for Relief. Parties may

seek relief described in paragraph (a) of

this section by filing an appropriate

petition containing:

(i) A full explanation, together with

all supporting evidence, to demonstrate

that the standard for relief contained in

paragraph (a) of this section is met;

(ii) A summary of the petitioner’s

discussions with the incumbent carrier

of the service problems and the reasons

why the incumbent carrier is unlikely to

restore adequate rail service consistent

with the shipper’s needs within a

reasonable period of time;

(iii) A commitment from another

available railroad to provide alternative

service that would meet the shipper’s

service needs, and how that carrier

would provide the service safely

without degrading service to its existing

customers or unreasonably interfering

with the incumbent’s overall ability to

provide service; and

(iv) A certification of service of the

petition, by overnight delivery, on the

incumbent carrier.

(2) Reply. The incumbent carrier must

file a reply to a petition under this

subsection within five (5) business days.

(3) Rebuttal. The party requesting

relief may file rebuttal no more than

three (3) business days later.

(c) Presumption of Continuing Need.

Unless otherwise indicated in the

Board’s order, a Board order issued

under paragraph (a) of this section that

prescribes relief under 49 U.S.C.

11123(a) shall establish a rebuttable

presumption that the transportation

emergency will continue for more than

30 days from the date of that order.

(d)(1) Petition to Terminate Relief.

Should the Board prescribe alternative

rail service under paragraph (a) of this

section, the incumbent carrier may

subsequently file a petition to terminate

that relief. Such a petition shall contain

a full explanation, together with all

supporting evidence, to demonstrate

that the carrier is providing, or is

prepared to provide, adequate service to

affected shippers. Absent special

circumstances, carriers are discouraged

from filing such a petition less than 90

days after relief is granted under

paragraph (a) of this section.

(2) Reply. Parties must file replies to

petitions to terminate filed under this

subsection within five (5) business days.

(3) Rebuttal. The incumbent carrier

may file any rebuttal no more than three

(3) business days later.

* * * * *

[FR Doc. 98–13095 Filed 5–15–98; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants, Notice of Reopening of

Comment Period on the Proposed

Threatened Status of the Sacramento

Splittail

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule, notice of

reopening of comment period.

SUMMARY: The Fish and Wildlife Service

(Service), pursuant to the Endangered

Species Act of 1973, as amended (Act),

provides notice of the reopening of the

comment period for the proposed

threatened status for the Sacramento

splittail (Pogonichthys macrolepidotus).

The comment period has been reopened

to acquire additional information on the

status, abundance and distribution of

the Sacramento splittail in the Central

Valley of California.

DATES: Comments received by July 17,

1998 will be considered by the Service.

ADDRESSES: Written comments,

materials and data, and available reports

and articles concerning this proposal

should be sent directly to the Field

Supervisor, Sacramento Fish and

Wildlife Office, U.S. Fish and Wildlife

Service, 3310 El Camino Avenue, Suite

130, Sacramento, California 95821.

Comments and materials received will

be available for public inspection, by

appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT:

Mike Thabault, at the address listed

above (telephone 916/979–2725,

facsimile 916/979–2723).

SUPPLEMENTARY INFORMATION:

Background

The Sacramento splittail

(Pogonichthys macrolepidotus), is the

only large cyprinid that is endemic to

California’s Central Valley, where they

were once widely distributed (Moyle

1976). Historically, splittail were found

as far north as Redding on the

Sacramento River, as far south as the

present-day site of Friant Dam on the

San Joaquin River, and as far upstream

as the current Oroville Dam site on the

Feather River and Folsom Dam site on

the American River (Rutter 1908).

In recent times, dams and diversions

have increasingly prevented upstream

access to large rivers, and the species is

now apparently restricted to a small

portion of its former range (Moyle and

Yoshiyama 1992). Splittail enter the