Federal Register / Vol. 87, No. 84 / Monday, May 2, 2022 / Proposed Rules 25609 

1While 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). 

2Press 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. 

4Under 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 

Continued 

details of FOIA administration, and the 

steps taken during that reporting year to 

implement the Attorney General’s 2009 

FOIA Guidelines, unless it received 

fewer requests in the previous fiscal 

year than a threshold established by the 

Attorney General. 

§ 2507.27 Rights and Services Qualified by 

the FOIA Statute. 

Nothing in this part may be construed 

to entitle any person, as a right, to any 

service or to the disclosure of any record 

to which such person is not entitled 

under the FOIA. 

Dated: April 26, 2022. 

Fernando Laguarda, 

General Counsel. 

[FR Doc. 2022–09208 Filed 4–29–22; 8:45 am] 

BILLING CODE 6050–28–P 

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. 

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. 

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. 

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 


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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. 

7Current 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). 

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

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. 

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 


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8Should 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. 

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. 

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 § 1146.1(b)(2) would be 

reduced from five business days to 

three, and the rebuttal period under 

§ 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 


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9The 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. 

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 § 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 § 1146.1 and that any relief 

ordered by the Board pursuant to 

§ 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. 

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 § 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 


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10Class 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). 

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. 

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 

■ 1. The authority citation for part 1146 

continues to read as follows: 

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

11123. 

■ 2. Revise § 1146.1 to read as follows: 

§ 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 


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25614 Federal Register / Vol. 87, No. 84 / Monday, May 2, 2022 / Proposed Rules 

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. 

■ 3. Add § 1146.2 to read as follows: 

§ 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 § 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 

§ 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 

ServiceEmergency@stb.gov. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 


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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

Type of filing 

Number of 

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

Type of filing Number of 

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 × number of annual responses 

for each type of filing). 

TOTAL ANNUAL BURDEN HOURS

Type of filing Hours per 

response 

Annual 

number 

of filings 

Total annual 

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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