[Federal Register Volume 87, Number 84 (Monday, May 2, 2022)]
[Proposed Rules]
[Pages 25609-25615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09005]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1146

[Docket No. EP 762]


Regulations for Expedited Relief for Service Emergencies

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (STB or Board) proposes to 
amend its emergency service regulations. Specifically, the Board 
proposes to: Amend procedures for parties seeking a Board order 
directing an incumbent carrier to take action to remedy a service 
emergency; indicate that the Board may act on its own initiative to 
direct emergency service; modify the informational requirements for 
parties in emergency service proceedings; shorten the filing deadlines 
in emergency service proceedings and establish a timeframe for Board 
decisions; and establish an accelerated process for certain acute 
service emergencies.

DATES: Comments are due by May 23, 2022. Reply comments are due by June 
6, 2022.

ADDRESSES: Comments and replies should be filed with the Board either 
via e-filing on the Board's website at www.stb.gov, or in writing 
addressed to: Surface Transportation Board, Attn: Docket No. EP 762, 
395 E Street SW, Washington, DC 20423-0001. Filings will be posted to 
the Board's website.

FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368. 
Assistance for the hearing impaired available through the Federal Relay 
Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: Pursuant to its broad statutory mandate, the 
Surface Transportation Board closely monitors the rail industry's 
service performance. See 49 U.S.C. 1321, 11145; see also 49 U.S.C. 
10101, 11323, 10907. Since late 2013, railroad service challenges 
impacting a wide range of geographic regions and commodities have 
occurred periodically. See, e.g., U.S. Rail Serv. Issues--Performance 
Data Reporting, EP 724 (Sub-No. 4) (STB served Dec. 30, 2014), 80 FR 
473 (Jan. 6, 2015); STB Letter to CSX Transp., Inc. Requesting Service 
Reporting (July 27, 2017); STB Letter to Union Pac. Corp. Requesting 
Service Outlook (Mar. 16, 2018); STB Letter to Union Pac. Corp. 
Regarding New Operating Plan (Sept. 20, 2018); Chairman Oberman Letter 
to NS Regarding Service Issues (Nov. 23, 2021).
    In response to service challenges in recent years, the Board has 
held a series of public hearings to permit interested persons to report 
on specific service problems, to hear from rail industry executives on 
plans to address rail service problems generally, and to explore 
additional options to improve service. One such hearing was held in 
October 2017 in Washington, DC, at which a number of shippers observed 
that the Board's regulations at 49 CFR part 1146 governing expedited 
relief for service emergencies are rarely invoked, even in times of 
serious rail service challenges. See Pub. Listening Session Regarding 
CSX Transp., Inc.'s Rail Serv. Issues, EP 742, Hr'g Tr. 89:13-22; 90:1; 
150:3-14; 196:11-22; 197:1-16; 199:1-9 (Oct. 17, 2017).
    Based on these concerns and to better understand the reasons for 
the lack of use of the Board's directed service regulations, the Board 
announced on March 15, 2018, that Board staff would hold informal 
meetings with interested persons to discuss and gather feedback on the 
adequacy of the Board's current regulations regarding emergency service 
and service inadequacies, and whether and how the current regulations 
should be modified to offer a more meaningful path to relief. See STB 
Press Release, No. 18-2 (Mar. 15, 2018).\1\ As a result, Board staff 
met with representatives of a variety of entities representing carrier 
and shipper interests in the second quarter of 2018. A recurring 
concern expressed by shipper interests was the amount of time it takes 
to obtain relief for service failures under the existing procedures and 
the difficulty of satisfying certain informational burdens. While 
carrier interests acknowledged that very few emergency-service 
petitions had been filed, they generally indicated a belief that the 
existing procedures were sufficient and that the Board's informal Rail 
Customer and Public Assistance program (RCPA) was helpful in resolving 
acute service issues.
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    \1\ While these meetings also included discussion of 49 CFR part 
1147 (Temporary Relief Under 49 U.S.C. 10705 and 11102 for Service 
Inadequacies), this proposed rule only concerns part 1146 (Expedited 
Relief for Service Emergencies).
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    More recently, the Board announced that it would hold a hearing on 
April 26 and 27, 2022, on recent rail service problems impacting the 
network and the recovery efforts involving several Class I carriers.\2\ 
As the hearing notice explained, the Board has heard informally from a 
broad range of stakeholders about inconsistent and unreliable rail 
service throughout the network and across commodity groups. These 
challenges include tight car supply and unfilled car orders, delays in 
transportation for carload and bulk traffic, increased origin dwell 
time for released unit trains, missed switches, and ineffective 
customer assistance.\3\ Such service issues, should they continue, 
could result in an increased need for emergency Board action to meet 
the needs of the public.
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    \2\ Press Release, STB, STB Issues Hearing Notice for Urgent 
Issues in Freight Rail Service (Apr. 7, 2022).
    \3\ In light of the consistent and pervasive nature of these 
service issues, the Board is limiting the comment period to 30 days 
and the reply period to 15 days rather than the more customary 60-
day comment period and 30-day reply period.
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    Based on additional review of the feedback received during hearings 
and the informal stakeholder communications, consideration of the 
current service problems, and further consideration of the current 
regulations, the Board proposes to modify and update its emergency 
service rules at 49 CFR part 1146.

Background

    Emergency service orders are designed to preserve rail service 
where there has been a substantial rail service issue or failure that 
requires immediate relief. Under 49 U.S.C. 11123(a), the Board may 
issue an emergency service order where there exists ``an emergency 
situation of such magnitude as to have substantial adverse effects on 
shippers, or on rail service in a region of the United States, or that 
a rail carrier . . . cannot transport the traffic offered to it in a 
manner that properly serves the public[.]'' \4\ When the Board 
determines

[[Page 25610]]

that such a situation exists, it may: ``(1) direct the handling, 
routing, and movement of the traffic of a rail carrier and its 
distribution over its own or other railroad lines; (2) require joint or 
common use of railroad facilities; (3) prescribe temporary through 
routes; and (4) give directions for--(A) preference or priority in 
transportation; (B) embargoes; or (C) movement of traffic under 
permits;'' or, when the service failure is caused by a cessation of 
service by Amtrak, direct the continuation of operations and related 
functions. Id. The Board may act on its own initiative or pursuant to a 
petition, and emergency service may be ordered summarily (i.e., without 
regard to the Administrative Procedure Act). Id. section 11123(b)(1). 
Board orders under section 11123 are subject to an initial time limit 
of 30 days but may be extended up to an additional 240 days if the 
Board finds that emergency conditions continue to exist. Id. section 
11123(a) & (c).\5\ The Board's existing regulations at part 1146 were 
adopted in 1998 following Board hearings held at the request of 
Congress to examine issues of rail access and competition in the 
railroad industry. See Expedited Relief for Serv. Inadequacies, EP 628 
(STB served Dec. 21, 1998), 63 FR 71396 (Dec. 28, 1998).\6\
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    \4\ Under the statute, an emergency situation can be created by 
``shortage of equipment, congestion of traffic, unauthorized 
cessation of operations, failure of existing commuter rail passenger 
transportation operations caused by a cessation of service by the 
National Railroad Passenger Corporation, or other failure of traffic 
movement,'' 49 U.S.C. 11123(a).
    \5\ In the case of an alternative carrier providing service over 
an incumbent carrier's lines, the rail carriers may establish the 
terms of compensation and operations between themselves. The Board 
may set compensation if the carriers do not agree. 49 U.S.C. 
11123(b)(2).
    \6\ In Expedited Relief for Service Inadequacies, the Board also 
adopted regulations at part 1147 designed to address service issues 
that require longer-term relief. Id. at 6. At this time, the Board 
is not proposing modifications to the regulations at part 1147, 
which are based on 49 U.S.C. 11102 and 10705 rather than section 
11123.
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    The current regulations at 49 CFR 1146.1(a) provide, in relevant 
part, that a petitioner seeking relief must show a substantial, 
measurable service deterioration or other demonstrated inadequacy over 
an identified period of time by the incumbent carrier. Any petition for 
relief must demonstrate that the standard contained in 49 CFR 1146.1(a) 
is met, provide a summary of discussions the petitioner has had with 
the incumbent carrier regarding the service problems and the reasons 
why the incumbent is unlikely to restore adequate rail service within a 
reasonable period of time, and include a commitment from an alternative 
carrier to provide service that can be performed safely without 
degrading service to existing customers of the alternative carrier and 
without unreasonably interfering with the incumbent's overall ability 
to provide service.\7\ 49 CFR 1146.1(b). A reply to the petition must 
be filed by the incumbent carrier within five business days, and a 
rebuttal by the party requesting relief may be filed within three 
business days following submission of the reply.
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    \7\ Current regulations also require that a petition for relief 
include a ``certification of service of the petition, by hand or by 
overnight delivery, on the incumbent carrier, the proposed 
alternative carrier, and the Federal Railroad Administration.'' 49 
CFR 1146.1(b)(1)(iv).
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Proposed Amendments

    The proposed amendments, which would change the Board's regulations 
at 49 CFR part 1146, are set out below. The amendments aim to address 
several concerns with part 1146 that appear to diminish the ability of 
stakeholders to invoke the Board's processes when they are most 
needed--during service emergencies that require immediate regulatory 
intervention. If stakeholders are unable or unwilling to pursue such 
remedies due to shortcomings of the current regulatory framework, 
unaddressed service emergencies create substantial negative impacts on 
the public. As discussed above, proponents of a rule modification have 
generally indicated that the current process takes too long and places 
burdens on petitioners that are difficult to meet, even when the 
emergency is acute.
    In proposing these modifications, the Board is mindful that rail 
service adequacy is a key part of the Board's mandate. See, e.g., U.S. 
Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4), slip 
op. at 5 (STB served Nov. 30, 2016), 81 FR 87472 (Dec. 5, 2016) (citing 
49 U.S.C. 10101). Pursuant to the rail transportation policy of 49 
U.S.C. 10101, in regulating the railroad industry, it is the policy of 
the United States Government to promote a safe and efficient rail 
transportation system, section 10101(3); ensure the development of a 
sound rail transportation system to meet the needs of the public, 
section 10101(4); foster sound economic conditions in transportation, 
section 10101(5); and provide for the expeditious handling and 
resolution of all proceedings, section 10101(15). Poor rail service can 
harm productivity in important sectors of the economy and can have 
significant ripple effects throughout the rail network, both of which 
undermine sound rail transportation and economic conditions. The 
proposed rule changes would advance the rail transportation policy 
goals by enabling the Board to order temporary relief in emergency 
situations more quickly and effectively, to more rapidly ensure that 
localized problems do not spread to other parts of the network, and to 
give parties involved in emergency situations (both rail carriers and 
shippers) more certainty on the resolution of those issues.
    Clarifying Remedial Pathways. During the Board's stakeholder 
meetings in 2018, several stakeholders expressed uncertainty regarding 
whether, under part 1146, the Board can simply direct incumbent 
carriers to take particular service actions without involving an 
alternative carrier. This uncertainty appears rooted in the fact that 
the Board's current regulations focus on the prescription of rail 
service by an alternative carrier, requiring that any petition for 
relief contain, among other things, ``a commitment from another 
available railroad to provide alternative service that would meet 
current transportation needs.'' 49 CFR 1146.1(b)(iii). Under 49 U.S.C. 
11123, however, the Board is clearly authorized to issue an emergency 
service directive without regard to whether an alternative carrier is 
available or necessary to remedy the particular issue. See 49 U.S.C. 
11123(a)(1) (the Board may direct the handling, routing, and movement 
of a rail carrier's traffic over its own lines). Certain circumstances 
(e.g., an emergency situation with substantial adverse effects on 
shippers caused by a severe and unreasonable delay in the delivery of 
railcars that are in the custody of an incumbent carrier) may 
necessitate requiring an incumbent carrier to undertake immediate 
actions that it has not performed, particularly in situations where 
service by an alternative carrier is not a viable option. Indeed, the 
Board has in the past issued service orders directed at incumbent 
carriers. See, e.g., Canexus Chems. Can. L.P. v. BNSF Ry.--Emergency 
Serv. Ord., FD 35524 (STB served Oct. 14, 2011) (requiring incumbents 
to maintain service pursuant to section 11123). To address any 
confusion regarding this issue, the Board proposes adding language to 
49 CFR part 1146 to parallel the statute and indicate that the Board 
may direct an incumbent carrier to take action as well as direct an 
alternative carrier to provide service.
    The Board also proposes adding language to 49 CFR part 1146 to 
clarify that it can act on its own initiative as well as pursuant to a 
petition. Rail service problems come to the Board's attention in 
several ways in addition to by petition, such as through the Board's 
review of performance service data submitted by carriers under 49 CFR 
part 1250 or stakeholder testimony at

[[Page 25611]]

service-related hearings, and the Board has the express statutory 
authority to act on its own initiative when warranted. See 49 U.S.C. 
11123(b)(1).
    Both of these proposed changes to the Board's emergency service 
regulations would better align the Board's regulations with its 
statutory authority and provide clarity to stakeholders on the pathway 
for seeking relief in emergency situations.
    Modifying Petition Requirements. Currently, under 49 CFR 
1146.1(b)(1)(iii), a petitioner must have a commitment from another 
available railroad to provide alternative service and explain how the 
alternative service would be provided safely without degrading service 
to the existing customers of the alternative carrier and without 
unreasonably interfering with the incumbent's overall ability to 
provide service.
    Proponents of a rule modification have expressed frustration with 
the requirement to secure an alternative carrier in advance (i.e., a 
commitment to be included in a petition) during a service emergency. 
These proponents report that potential alternative carriers are 
reluctant to participate in emergency alternative service (1) because 
taking on new business for a short and unknown period of time can be 
unattractive financially, (2) for fear of retaliation by the incumbent 
carrier (particularly where the alternative carrier is a railroad that 
depends on an ongoing working relationship with the incumbent), and (3) 
due to uncertainty in ensuring that alternative service can be provided 
safely and in accordance with applicable regulations and operating 
practices. In the 1998 decision adopting the part 1146 rules, the Board 
considered similar concerns but ultimately decided to require the 
advance commitment of a willing alternative carrier, on the basis that 
to do otherwise ``could create safety concerns, impair service to [the 
alternative carrier's] customers, or hurt its finances.'' Expedited 
Relief for Serv. Inadequacies, EP 628, slip op. at 11. While the Board 
recognizes that these are important considerations, it is more 
appropriate for the Board to take any such concerns into account when 
considering individual requests for emergency service. Requiring an 
advance commitment from an alternative carrier as a condition to filing 
an emergency service petition is not a needed burden on petitioners 
experiencing a service crisis and undermines the usefulness of this 
important statutory remedy.
    The Board therefore proposes changes that will ease this burden by 
requiring petitioners to submit only a list of possible alternative 
carriers, based on the petitioner's understanding of other rail 
carriers' nearby operations. This modification would still allow the 
Board, with some initial guidance from the petitioner, to determine 
whether a suitable alternative carrier may be available based on 
individual circumstances, thereby allowing a petitioner to focus on 
providing readily available information regarding its service emergency 
to the Board as expeditiously as possible. While the informational 
burden on the petitioner would be lessened, the Board would encourage 
petitioners to include any information available to them that would 
assist the Board in determining what, if any, relief is available and 
appropriate.
    Proponents of a rule modification have also identified challenges 
with the requirement that an emergency service petition explain how 
alternative service would be provided safely without degrading service 
to the existing customers of the alternative carrier and without 
unreasonably interfering with the overall ability of the incumbent 
carrier and alternative carrier, if any, to provide service, given that 
such information is entirely within the control of the alternative and 
incumbent carriers. Some proponents also suggested that requiring the 
petition to explain the reasons why the incumbent carrier is unlikely 
to restore adequate rail service within a reasonable period of time 
poses too onerous a burden. The Board is proposing changes to these 
requirements. First, as discussed below, the Board proposes to require 
the incumbent carrier and alternative carriers, if any, to address, in 
the first instance, whether the proposed remedy would substantially 
impair their ability to serve their customers adequately or fulfill 
their common carrier obligations. Second, with regard to the required 
explanation of reasons why the incumbent carrier is unlikely to restore 
rail service, the Board proposes to clarify that the explanation need 
only take the form of a ``summary'' to the extent that such information 
is available to the petitioner.
    The Board proposes these changes because it agrees that the current 
regulations do not place the informational requirements on the parties 
most likely to have the information. Given that these proceedings occur 
on an emergency, expedited basis without traditional discovery, 
requiring the petitioner to provide detailed information at the outset 
of a matter could limit access to the Board. Accordingly, because 
operational information of the incumbent carrier is not readily 
accessible to a petitioner, and because relevant facts in this regard 
will be within the incumbent carrier's control, the Board proposes 
requiring the incumbent carrier to address in its reply whether, and if 
so, why, the remedy proposed by the petitioner would be unsafe or 
infeasible or will substantially impair the incumbent's ability to 
serve its other customers or fulfill its common carrier obligations. 
For the same reasons, the proposed rule would allow any identified 
possible alternative carrier to file a reply to the emergency service 
petition and would require such filings to set forth any known problems 
or concerns perceived by the possible alternative carrier regarding the 
alternative service.\8\ These changes would allow the entity with the 
most knowledge about its operations to explain to the Board why a 
proposal regarding its operations is unsafe or infeasible, or would 
unreasonably impair its ability to serve other customers or fulfill its 
common carrier obligations.
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    \8\ Should it need information from any possible alternative 
carrier that does not file a reply, the Board will take appropriate 
action, including directly contacting possible alternative carriers 
to request such information.
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    Modifying the Regulatory Timeframe. Stakeholders have also 
expressed concern about the overall length of the process set forth in 
part 1146, as well as the lack of a date certain by which a Board 
decision can be expected, both of which the Board agrees can be 
detrimental to a petitioner's business planning in the midst of a 
service emergency. See, e.g., Pub. Listening Session Regarding CSX 
Transp. Rail Serv. Issues, EP 742, Tr. 89-90, 199, Oct. 11, 2017. 
Therefore, in order to resolve emergency service matters more 
efficiently and expeditiously, the Board proposes (1) shortening the 
filing deadlines set forth in part 1146 and (2) establishing a target 
timeframe for a Board decision on the petition. The reply period for an 
incumbent or any alternative carrier to respond to a petition under 
Sec.  1146.1(b)(2) would be reduced from five business days to three, 
and the rebuttal period under Sec.  1146.1(b)(3) would be reduced from 
three business days to two. Additionally, the Board proposes language 
stating that it expects to issue a decision within five business days 
after receiving the rebuttal. By shortening the timeframe and 
indicating when the parties can expect a decision by the Board, the 
proposed amendments would further streamline the process for

[[Page 25612]]

all parties involved in an emergency service proceeding.
    Establishing an Accelerated Process to Handle Acute Service 
Emergencies. The most serious issue identified by stakeholders was the 
timeliness of regulatory action in situations involving acute service 
emergencies, such as those involving public health or safety issues and 
imminent and extended potential plant shutdowns. In an effort to more 
efficiently address the most urgent service emergencies in a more 
expeditious manner, the Board proposes to establish an accelerated 
process for certain acute service emergencies that present potential 
imminent harm and threaten potentially severe adverse consequences to 
the petitioner, its customers, or the public. Such emergencies would 
arise when there is a clear and present threat to public health, 
safety, or food security, or a high probability of business closures or 
immediate and extended plant shutdowns.
    The Board seeks comment on a separate accelerated process, set out 
below in proposed new Sec.  1146.2, whereby a petitioner seeking 
accelerated relief must indicate that the petitioner is seeking such 
relief pursuant to that process, include a description of specific and 
particularized actions that can be performed by the incumbent or an 
alternative carrier and ordered by the Board,\9\ and demonstrate that 
the described emergency presents an imminent significant harm and 
threatens potentially severe adverse consequences to the petitioner, 
its customers, or the public. To satisfy this standard, the petitioner 
must demonstrate that the alleged harm will occur before any relief 
could be ordered under Sec.  1146.1 and that any relief ordered by the 
Board pursuant to Sec.  1146.1 would be rendered ineffective. As noted 
above, such severe adverse circumstances exist when there is a clear 
and present threat to public health, safety, or food security, or a 
high probability of business closures or immediate and extended plant 
shutdowns.
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    \9\ The statute limits the Board's emergency service authority 
to the actions enumerated in 49 U.S.C. 11123(a), which are listed 
above. Accordingly, any relief ordered through the accelerated 
process must be one of the actions listed in the statute.
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    The petition must also include a description of any efforts taken 
to resolve the issue through others means, such as utilizing the 
Board's rail customer and public assistance program (RCPA) or direct 
discussions with the incumbent railroad. The description must be 
verified by a person (or persons) with firsthand knowledge of the 
efforts. In this regard, the newly proposed accelerated process would 
not be intended to supplant the informal assistance readily available 
through the RCPA office. The RCPA program offers stakeholders a fee-
free and confidential forum through which they can resolve disputes. 
The Board finds that RCPA has been quite effective in working directly 
with railroads to resolve critical-need situations. It may be the case 
that a stakeholder has availed itself of the auspices of the RCPA 
program but has been unable to secure a resolution of its problem, 
necessitating its pursuit of formal recourse before the Board. 
Nonetheless, the Board is concerned with the effects of an accelerated 
process on the Board's informal dispute resolution processes, and it 
proposes a requirement that a petitioner make a good faith effort to 
informal dispute resolution prior to filing.
    Under Sec.  1146.2, a petition would be limited in length to three 
substantive pages (not including cover page, verifications, or 
certificate of service). The petitioner would be allowed the 
opportunity during a telephonic or virtual hearing to present further 
evidence in support of its petition.
    A petition seeking accelerated relief would be assigned to a 
designated Board Member for initial resolution. The designation of 
which Board Member would evaluate any petition submitted under the 
accelerated process would rotate on a quarterly basis. If the 
designated Board Member is unavailable, the next Board Member in the 
rotation would be assigned to evaluate the petition. Upon receipt of 
the petition for accelerated relief by the designated Board Member, the 
Board would notify the parties regarding a telephonic or virtual 
hearing to be held no sooner than 24 hours after receipt of the filing, 
but no later than 48 hours after receipt of the filing or as soon 
thereafter as logistically possible. Given the accelerated process, 
oral replies to the petition would occur during the hearing and there 
would be no period designated in the schedule for written replies, 
although the rule contemplates that the Board Member may order the 
carriers to submit, or the carriers may voluntarily submit, an 
alternative plan to address the emergency situation within 24 hours of 
the hearing. The Board expects that the designated Board Member would 
issue an initial decision on the merits of the petition requesting 
accelerated relief within two business days after completion of the 
hearing.
    An initial decision on the merits of the petition requesting 
accelerated relief issued by the designated Board Member may be 
appealed to the entire Board pursuant to 49 CFR 1115.2. An appeal will 
not stay the effectiveness of the initial decision, but the Board 
proposes to expedite its appellate timeframe and require any petition 
for a stay of the initial decision to be filed concurrently with the 
appeal. The record of this new proceeding would include the 
confidential, unredacted recording of the hearing from the accelerated 
proceeding.
    The Board has concerns as to whether an accelerated process would 
allow the Board sufficient information by which to ascertain whether 
its order would impair substantially the ability of a rail carrier to 
serve its own customers adequately, or to fulfill its common carrier 
obligations. 49 U.S.C. 11101, 11123(c)(2). As such, the Board is 
proposing a requirement that any relief clearly avoid any substantial 
impairment of the ability of a rail carrier to serve its own customers 
adequately, or to fulfill its common carrier obligations. The Board 
will not award relief unless it is clear, based on the limited record, 
that it will not have an overall negative affect on shippers and that 
it will avoid any risk of placing other shippers in similar 
circumstances as petitioner. Given the accelerated nature of this 
process, the Board also proposes a time limit for relief of 20 days. 
This should provide sufficient time to allow petitioners to file a case 
under 49 CFR 1146.1, which would involve a more extended evidentiary 
process, for relief in effect up to 240 days, if necessary.
    If an accelerated petition is denied for failure to satisfy the 
standard for accelerated relief, the petitioner may choose to appeal 
that ruling to the entire Board, or the petitioner may file a new 
petition pursuant to 49 CFR 1146.1 regarding the same service 
emergency.
    The Board believes that this proposed accelerated process will 
improve and streamline the petition process to address the most 
critical service emergencies and strikes an appropriate balance between 
the need to act quickly in such situations and maintaining adequate due 
process for the involved carriers, but the Board specifically seeks 
comment on changes to the proposed regulations to afford carriers the 
opportunity to provide information on the effects on their networks 
while maintaining the accelerated nature of the process.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, 
generally requires a description and analysis of new rules that would 
have a significant economic impact of a substantial

[[Page 25613]]

number of small entities. In drafting a rule, an agency is required to: 
(1) Assess the effect that its regulation will have on small entities, 
(2) analyze effective alternatives that may minimize a regulation's 
impact, and (3) make the analysis available for public comment. 
Sections 601-604. In its notice of proposed rulemaking, the agency must 
either include an initial regulatory flexibility analysis, 603(a), or 
certify that the proposed rule would not have a ``significant impact on 
a substantial number of small entities,'' section 605(b).
    Because the goal of the RFA is to reduce the cost to small entities 
of complying with Federal regulations, the RFA requires an agency to 
perform a regulatory flexibility analysis of small entity impacts only 
when a rule directly regulates those entities. In other words, the 
impact must be a direct impact on small entities ``whose conduct is 
circumscribed or mandated'' by the proposed rule. White Eagle Coop. v. 
Conner, 553 F.3d 467, 480 (7th Cir. 2009).
    The Board's proposed changes to its regulations here are intended 
to improve and expedite its directed service procedures and do not 
mandate or circumscribe the conduct of small entities. For the purpose 
of RFA analysis for rail carriers subject to the Board's jurisdiction, 
the Board defines a ``small business'' as only including those rail 
carriers classified as Class III rail carriers under 49 CFR part 1201, 
General Instruction 1-1. See Small Entity Size Standards Under the 
Regul. Flexibility Act, EP 719 (STB served June 30, 2016), 81 FR 42566 
(June 30, 2016).\10\ The changes proposed here are largely procedural 
and would not have a significant economic impact on the Class III rail 
carriers to which the RFA applies. Affected shippers or railroads may 
seek the relief under part 1146 and the proposed changes, if 
promulgated, would enable the Board to provide temporary relief from 
serious, localized service problems more quickly and effectively. 
Therefore, the Board certifies under 5 U.S.C. 605(b) that these 
proposed rules, if promulgated, would not have a significant economic 
impact on a substantial number of small entities within the meaning of 
RFA. The proposed rules, if promulgated, would modify and clarify its 
regulations regarding directed service procedures.
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    \10\ Class III carriers have annual operating revenues of $40.4 
million or less in 2019 dollars. Class II rail carriers have annual 
operating revenues of less than $900 million but more than $40.4 
million in 2019 dollars. The Board calculates the revenue deflator 
factor annually and publishes the railroad revenue thresholds in 
decisions and on its website. 49 CFR part 1201, General Instruction 
1-1; Indexing the Annual Operating Revenues of R.Rs., EP 748 (STB 
served July 12, 2021), 86 FR 36590 (July 12, 2021).
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Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, 
Office of Management and Budget (OMB) regulations at 5 CFR 
1320.8(d)(3), and in the Appendix, the Board seeks comments about the 
impact of the collection for the Directed Service Regulations (OMB 
Control No. 2140-XXXX), concerning: (1) Whether the collections of 
information, as added in the proposed rule, and further described 
below, are necessary for the proper performance of the functions of the 
Board, including whether the collections have practical utility; (2) 
the accuracy of the Board's burden estimates; (3) ways to enhance the 
quality, utility, and clarity of the information collected; and (4) 
ways to minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology, when appropriate.
    The Board estimates that the proposed requirements would have a 
total hourly burden of 2,710 hours. There are no non-hourly burdens 
associated with these collections. The Board welcomes comment on the 
estimates of actual time and costs of the collection of (a) petition 
for relief (b) petition to terminate relief, (c) petition for 
accelerated relief, (d) appeal to entire board, and (e) stay of relief, 
as detailed in the Appendix. Other information pertinent to these 
collections is also included in the Appendix. The proposed rule will be 
submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5 
CFR 1320.11. Comments received by the Board regarding these information 
collections will be forwarded to OMB for its review when the final rule 
is published.
    It is ordered:
    1. The Board proposes to amend its rules as set forth in this 
decision. Notice of the proposed rules will be published in the Federal 
Register.
    2. Comments are due by May 23, 2022. Reply comments are due by June 
6, 2022.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    4. This decision is effective on its service date.

    Decided: April 22, 2022.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend title 49, chapter X, part 1146 
of the Code of Federal Regulations as follows:

PART 1146--EXPEDITED RELIEF FOR SERVICE EMERGENCIES

0
1. The authority citation for part 1146 continues to read as follows:

    Authority:  49 U.S.C. 1321, 11101, and 11123.

0
2. Revise Sec.  1146.1 to read as follows:


Sec.  1146.1  Prescription of alternative rail service or directed 
action by an incumbent carrier.

    (a) General. Alternative rail service, or directed action by an 
incumbent carrier, will be prescribed under 49 U.S.C. 11123(a) if the 
Board determines that, over an identified period of time, there has 
been a substantial, measurable deterioration or other demonstrated 
inadequacy in rail service provided by the incumbent carrier. In 
prescribing the relief described in this part, the Board may act on its 
own initiative or pursuant to a petition.
    (b) Procedures--(1) Petition for relief. Affected shippers or 
railroads may seek the 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 both 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 petitioner's current transportation needs within a 
reasonable period of time;
    (iii) In a petition that seeks alternative rail service, 
identification of at least one possible rail carrier to provide 
alternative service, based on the petitioner's understanding of other 
rail carriers' nearby operations, that would meet the current 
transportation needs of the petitioner;
    (iv) A detailed explanation of the specific remedy that is being 
sought; and
    (v) A certification of service of the petition, by hand or by 
overnight delivery, on the incumbent carrier, any proposed alternative 
carrier, and the Federal Railroad Administration.
    (2) Reply. The incumbent carrier must, and any proposed alternative

[[Page 25614]]

carrier may, file a reply to a petition under this paragraph (b) within 
three (3) business days. If applicable, any reply should address 
whether the specific remedy proposed by the petitioner would be unsafe, 
or infeasible, or would substantially impair the replying carrier's 
ability to serve its other customers adequately or fulfill its common 
carrier obligations.
    (3) Rebuttal. The party requesting relief may file rebuttal no more 
than two (2) business days after the reply is filed.
    (4) Board decision. The Board will endeavor to issue a decision 
five (5) business days after receiving the rebuttal or time has expired 
for the party requesting relief to file a rebuttal, whichever is 
earlier.
    (c) Presumption of continuing need. Unless otherwise indicated in 
the Board's order, a Board order issued under paragraph (a) of this 
section shall establish a rebuttable presumption that the 
transportation emergency will continue for more than 30 days from the 
date of that order.
    (d) Termination of relief--(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. 
Carriers are admonished not to file such a petition prematurely.
    (2) Reply. Parties must file replies to petitions to terminate 
filed under this paragraph (d) within five (5) business days.
    (3) Rebuttal. The incumbent carrier may file any rebuttal no more 
than three (3) business days later.
    (e) Service. All pleadings under this part shall be served by e-
filing on the Board's website, by hand, or overnight delivery on the 
Board, the other parties, including any proposed alternative carrier, 
and the Federal Railroad Administration. Decisions issued on the 
Board's own motion shall also be served by hand or overnight delivery 
on the Federal Railroad Administration by the Board.
0
3. Add Sec.  1146.2 to read as follows:


Sec.  1146.2  Accelerated process.

    (a) Accelerated process. After making a good faith effort to 
resolve its service issue through an informal dispute resolution 
process or service of the Board, affected shippers or railroads may 
seek accelerated temporary interim relief for substantial, measurable 
deterioration or other demonstrated inadequacy in rail service provided 
by the incumbent carrier that presents potential imminent significant 
harm and threatens potentially severe adverse consequences to the 
petitioner, its customers, or the public. Such emergencies exist when 
there is a clear and present threat to public health, safety, or food 
security, or a high probability of business closures or immediate and 
extended plant shutdowns. The timing of such potential harm and 
consequences must render potential relief under Sec.  1146.1 
ineffective. The relief requested must clearly avoid any substantial 
impairment of the ability of a rail carrier to serve its own customers 
adequately, or to fulfill its common carrier obligations.
    (1) Standard. A petitioner seeking accelerated relief must indicate 
in its petition that it is seeking such relief pursuant to this 
paragraph (a) and must demonstrate circumstances that meet the standard 
set forth in this paragraph (a). The petition must include a 
description of specific and particularized action that could be 
performed by the incumbent or an alternative carrier and ordered by the 
Board. The petition must also include a summary description of the 
efforts taken to resolve the matter prior to filing the petition. The 
description must be verified by a person or persons with knowledge of 
the efforts taken to resolve the matter. The petition must include 
contact information for the incumbent carrier. The petition will be 
limited to three (3) substantive pages, not including the cover page, 
verifications, or certificate of service.
    (2) Hearing. When the Board receives a petition seeking accelerated 
relief under this paragraph (a), the petition will be assigned to a 
designated Board Member to be evaluated on its merits. The designation 
of which Board Member will evaluate the petition under the accelerated 
process will rotate on a quarterly basis. If a petition is filed and 
the designated Board Member is unavailable to evaluate the petition, 
the next Board Member in the rotation will evaluate the petition.
    (i) After the designated Board Member receives the petition for 
accelerated relief, a telephonic or virtual hearing will be held no 
sooner than 24 hours after receipt of the filing, but no later than 48 
hours after receipt of the filing, if practicable.
    (ii) Required parties for the hearing include the petitioner(s), 
the incumbent carrier, any potential alternative carriers, and any 
other parties deemed necessary by the designated Board Member. The 
designated Board Member may deem that portions of the hearing will be 
closed to certain parties if confidential business information needs to 
be discussed. The hearing will be recorded and later transcribed (with 
redactions, if necessary), and placed in the public docket of the 
proceeding.
    (iii) If applicable, the incumbent carrier shall address at the 
hearing whether the remedy proposed by the petitioner is unsafe, 
infeasible, or will unreasonably impair the replying carrier's ability 
to serve other customers. The Board Member may order the incumbent 
carrier to submit, or if no such order is issued, the incumbent carrier 
may choose to submit, within 24 hours of the completion of the hearing, 
an alternative service plan for the Board Member to consider. The Board 
Member may choose to receive such information either via written 
submission or a second virtual or telephonic hearing, if practicable.
    (3) Board decision. The designated Board Member will endeavor to 
issue an initial decision on the merits of the petition requesting 
accelerated relief within two (2) business days of the completion of 
the hearing. The Board Member shall not award relief for more than 20 
days.
    (b) Right to appeal. After the designated Board Member issues an 
initial decision on the merits of the petition requesting accelerated 
relief, the decision can be appealed to the entire Board. The appellate 
record is to include any filings by the parties in the proceeding and 
the unredacted recording of the hearing. The appeal will be subject to 
49 CFR 1115.2 except that the filing of an appeal will not stay the 
effect of the initial decision, and appeals must be filed within five 
(5) days after the service date of the decision or within any further 
period the Board may authorize; and replies must be filed within five 
(5) days of the date the appeal is filed.
    (c) Stay of relief. Parties seeking a stay of the relief issued by 
the designated Board Member must concurrently file an appeal of the 
decision and a petition to stay.
    (d) Exempted from 49 CFR part 1116. The accelerated petition 
process under Sec.  1146.1(c) is exempted from 49 CFR part 1116.
    (e) Service. All pleadings under this part shall be served by e-
filing on the Board's website, by hand, or overnight delivery on the 
Board, the other parties, and the Federal Railroad Administration. All 
pleadings under this part shall also be emailed to 
<a href="/cdn-cgi/l/email-protection#66350314100f0503230b0314010308051f2615120448010910"><span class="__cf_email__" data-cfemail="792a1c0b0f101a1c3c141c0b1e1c171a00390a0d1b571e160f">[email protected]</span></a>.

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.


[[Page 25615]]



Appendix

Information Collection Under the Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork burdens, 
and as required by the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501-3521, the Surface Transportation Board (Board) gives 
notice that it is requesting from the Office of Management and 
Budget (OMB) approval for the information collection, Directed 
Service Regulations, encompassing (a) petition for relief (b) 
petition to terminate relief, (c) petition for accelerated relief, 
(d) appeal to entire board, and (e) stay of relief. The proposed new 
collection necessitated by this notice of proposed rulemaking is 
expected to provide parties with additional options for resolution 
of smaller rail rate disputes and will further the Board's policy 
favoring the use of mediation and arbitration procedures.

Description of Collection

    Title: Directed Service Regulations.
    OMB Control Number: 2140-XXXX.
    STB Form Number: None.
    Type of Review: Collection without an OMB Control Number.
    Respondents: Parties seeking to have the Board direct rail 
service and rail carriers relating to such service.
    Number of Respondents: 30.
    Estimated Time per Response:

                      Estimated Hours per Response
------------------------------------------------------------------------
                                                             Number of
                     Type of filing                          hours per
                                                             response
------------------------------------------------------------------------
Petition for Relief.....................................             140
Petition to Terminate Relief............................              50
Petition (accelerated relief)...........................              70
Appeal to Entire Board..................................              50
Stay of Relief..........................................              40
------------------------------------------------------------------------

    Frequency: On occasion.

              Estimated Average Annual Number of Responses
------------------------------------------------------------------------
                                                             Number of
                     Type of filing                          responses
------------------------------------------------------------------------
Petition for Relief.....................................              10
Petition to Terminate Relief............................               2
Petition (accelerated relief)...........................              12
Appeal to Entire Board..................................               5
Stay of Relief..........................................               3
------------------------------------------------------------------------

    Total Burden Hours (annually including all respondents): 2,710 
(sum of estimated hours per response x number of annual responses 
for each type of filing).

                                            Total Annual Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                                     Hours per    Annual  number   Total annual
                         Type of filing                              response       of filings     burden hours
----------------------------------------------------------------------------------------------------------------
Petition for Relief.............................................             140              10           1,400
Petition to Terminate Relief....................................              50               2             100
Petition (accelerated relief)...................................              70              12             840
Appeal to Entire Board..........................................              50               5             250
Stay of Relief..................................................              40               3             120
                                                                 -----------------------------------------------
    Total Annual Burden Hours...................................  ..............  ..............           2,710
----------------------------------------------------------------------------------------------------------------

    Total Annual ``Non-hour Burden'' Cost: There are no non-hourly 
burden costs for this collection. The itemized collections may be 
filed electronically.
    Needs and Uses: Under the Interstate Commerce Act, as amended by 
the ICC Termination Act of 1995, the Board is responsible for the 
economic regulation of common carrier rail transportation. Under 49 
CFR part 1146, and as described in detail above, affected shippers 
or railroads may file a petition for relief before the Board when 
there has been a substantial, measurable deterioration or other 
demonstrated inadequacy in rail service provided by the incumbent 
carrier. It must include a full explanation and supporting evidence, 
a summary of discussion with the incumbent carrier and why it is 
unlikely to restore adequate service, identification of alternative 
rail service (if sought), the specific and detailed remedy being 
sought, and certification of service. If the Board prescribes 
alternative rail service, then the incumbent carrier may file a 
petition to terminate that relief, containing a full explanation 
with supporting evidence that it is providing adequate service.
    In addition to the petition for relief, affected shippers or 
railroads may seek accelerated temporary interim relief for 
substantial, measurable deterioration or other demonstrated 
inadequacy in rail service provided by the incumbent carrier that 
presents imminent significant harm and threatens potentially severe 
adverse consequences. This petition for accelerated relief must 
contain the specific action that could be performed by the incumbent 
or an alternative carrier and the efforts taken to resolve the 
matter (all limited to three substantive pages). Once received, a 
Board Member will be designated to evaluate the petition's merits 
and a telephonic hearing will be held with the parties and the Board 
Member will make an initial decision on the petition. A party may 
then file an appeal of the initial decision to the entire Board. 
Finally, because the appeal will not stay the relief granted in the 
initial decision, a party may file for a stay of the relief. All 
filings must be served on the other parties. These are the steps 
that provide for the collection of information under the PRA.

[FR Doc. 2022-09005 Filed 4-29-22; 8:45 am]
BILLING CODE 4915-01-P


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