[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66187-66188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27104]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. EP 704]


Review of Commodity, Boxcar, and TOFC/COFC Exemptions

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice.

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SUMMARY: The Surface Transportation Board (Board) will hold a public 
hearing beginning at 9:30 a.m. on December 9, 2010, in the Hearing Room 
on the first floor of the Board's headquarters in Washington, DC. The 
purpose of the public hearing will be to review certain categorical 
exemptions from regulation under 49 U.S.C. 10502, specifically the 
commodity exemptions under 49 CFR 1039.10 and 1039.11, the boxcar 
exemptions under 49 CFR 1039.14, and trailer-on-flatcar/container-on-
flatcar (TOFC/COFC) exemptions under 49 CFR part 1090. Persons wishing 
to speak at the hearing should notify the Board in writing.

DATES: The public hearing will take place on December 9, 2010. Any 
person wishing to speak at the hearing should file with the Board a 
combined notice of intent to participate (identifying the party, the 
proposed speaker, the time requested, and the topic(s) to be covered) 
and the person's written testimony by November 30, 2010. Written 
submissions by interested persons who do not wish to appear at the 
hearing are also due by November 30, 2010.

ADDRESSES: All filings may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise comply with the instructions at 
the ``E-FILING'' link on the Board's ``http://www.stb.dot.gov'' Web 
site. Any person submitting a filing in the traditional paper format 
should send an original and 10 copies of the filing to: Surface 
Transportation Board, Attn: Docket No. EP 704, 395 E Street, SW., 
Washington, DC 20423-0001.
    Copies of written submissions will be posted to the Board's Web 
site and will be available for viewing and self-copying in the Board's 
Public Docket Room, Suite 131. Copies of the submissions will also be 
available (for a fee) by contacting the Board's Chief Records Officer 
at (202) 245-0235 or 395 E Street, SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Julia Farr at (202) 245-0359. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: (800) 877-8339.]

SUPPLEMENTARY INFORMATION: The exemption provisions pertaining to 
railroads first adopted in the Railroad Revitalization and Regulatory 
Reform Act of 1976, Public Law 94-210, 90 Stat. 31 (1976) (4R Act), and 
later modified in the Staggers Act of 1980, Public Law 96-448, 94 Stat. 
1895 (1980) (Staggers Act), fundamentally changed the economic 
regulation of the railroad industry by the Board's predecessor, the 
Interstate Commerce Commission (the Commission). Prior to 1976, the 
Commission heavily regulated the industry. The Commission focused its 
regulation on ensuring equal treatment of shippers, which in some 
instances, led to railroad pricing decisions based on factors other 
than market considerations.
    By the early 1970s, the railroads were in financial decline. In an 
effort to revitalize the struggling railroad industry, Congress enacted 
the 4R Act and, 4 years later, the Staggers Act. In both statutes, 
Congress reduced the Commission's oversight of railroads through 
various means, including the statutory exemption provisions of 49 
U.S.C. 10505. Under Sec.  10505, which was enacted in the 4R Act and 
modified in the Staggers Act, Congress directed the Commission to 
exempt railroad activities when it found that regulation was not 
necessary to carry out the national rail transportation policy (RTP) of 
49 U.S.C. 10101, and either: (1) The exemption was of limited scope; or 
(2) regulation was not necessary to protect shippers from abuse of 
market power. (These exemption provisions are now contained in 49 
U.S.C. 10502.\1\) In the Staggers Act, Congress directed the Commission 
to pursue exemptions aggressively, and to correct any problems arising 
as a result of the exemption through its revocation authority.\2\
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    \1\ 49 U.S.C. 10505, Public Law 95-473, 92 Stat. 1361, has been 
omitted by Public Law 104-88, Title I, Sec.  102(a).
    \2\ H.R. Rep. No. 96-1430, at 105 (1980).
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    Consistent with that Congressional directive, the Commission 
exempted numerous commodities, services, and types of transactions from 
regulation. In its first ``commodity'' exemption, in Rail General 
Exemption Authority--Fresh Fruits & Vegetables, 361 I.C.C. 211 (1979), 
the Commission exempted certain fresh fruits and vegetables from its 
regulations, based largely on its conclusion that the rail market share 
of movements of these goods, which were subject to strong competitive 
forces, was minimal and declining. Since then, the agency has exempted 
numerous other individual commodities, listed in 49 CFR 1039.10 and 
1039.11, after finding that traffic for these individual commodities 
was sufficiently competitive and that railroads lacked sufficient 
market power such that abuse of shippers was not a substantial 
threat.\3\ The Commission also exempted rail (and truck) operations 
provided in connection with intermodal (TOFC/COFC) services, under 49 
CFR part 1090,\4\ and the rail transportation of all commodities in 
single-line boxcar service, under 49 CFR 1039.14.\5\
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    \3\ See, e.g., Rail Gen. Exemption Auth.--Nonferrous 
Recyclables, 3 S.T.B. 62 (1998); Rail Gen. Exemption Auth.--Petition 
of AAR to Exempt Rail Transp. of Selected Commodity Groups, 9 I.C.C. 
2d 969 (1993); Exemption from Regulation--Rail Transp. Frozen Food, 
367 I.C.C. 859 (1983); Liquid Iron Chloride, 367 I.C.C. 347 (1983); 
Rail Gen. Exemption Auth.--Miscellaneous Agric. Commodities, 367 
I.C.C. 298 (1983).
    \4\ See Central States Motor Freight Bureau v. ICC, 924 F.2d 
1099 (DC Cir. 1991), for a summary of the agency's several actions 
in connection with the progressive deregulation of TOFC/COFC 
services through the exemption process.
    \5\ See Brae Corp. v. United States, 740 F.2d 1023 (DC Cir. 
1984).
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    These agency exemption decisions were instrumental in the U.S. rail 
system's transition from a heavily regulated, financially weak 
component of the economy into a mature, relatively healthy industry 
that operates with only minimal oversight. The transition, however, was 
not without challenges, sometimes because an exemption under Sec.  
10502 excuses carriers from virtually all aspects of regulation,\6\ 
even though the Board's continuing jurisdiction over exempted movements 
also extinguishes

[[Page 66188]]

any common law cause of action regarding common carrier duties.\7\ 
Thus, for exempted movements, rail customers could pursue legal 
remedies under the Interstate Commerce Act only if they successfully 
petitioned the agency to revoke the exemption under 49 U.S.C. 10502(d).
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    \6\ See Pejepscot Indus. Park--Pet. for Declaratory Order, 6 
S.T.B. 886, 891, reconsideration granted in part, 7 S.T.B. 220 
(2003).
    \7\ See Consol. Rail Corp.--Declaratory Order--Exemption, 1 
I.C.C. 2d 895, 898 (1986).
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    As long as 30 years have passed since the adoption of many of these 
exemptions. In recent years, the Board has received informal inquiries 
questioning the relevance and/or necessity of some of the existing 
commodity exemptions, given the changes in the competitive landscape 
and the railroad industry that have occurred over the past few decades. 
The Board will, therefore, hold a hearing to explore the continuing 
utility of and the issues surrounding the categorical exemptions under 
Sec.  10502, specifically the various commodity exemptions under 49 CFR 
1039.10 and 1039.11, the boxcar exemptions under 49 CFR 1039.14, and 
TOFC/COFC exemptions under 49 CFR part 1090. The Board seeks comments 
as to the effectiveness of these exemptions in the marketplace; whether 
the rationale behind any of these exemptions should be revisited; and 
whether the exemptions should be subject to periodic review.
    Date of Hearing: The hearing will begin at 9:30 a.m. on December 9, 
2010, in the 1st floor hearing room at the Board's headquarters at 395 
E Street, SW., in Washington, DC and will continue, with short breaks 
if necessary, until every person scheduled to speak has been heard.
    Notice of Intent to Participate and Testimony: Any person wishing 
to speak at the hearing should file with the Board a combined notice of 
intent to participate (identifying the party, the proposed speaker, the 
time requested, and the topic(s) to be covered) and the person's 
written testimony, by November 30, 2010. Also, any interested person 
who wishes to submit a written statement without appearing at the 
December 9, 2010 hearing should also file that statement by November 
30, 2010.
    Board Releases and Live Video Streaming Available Via the Internet: 
Decisions and notices of the Board, including this notice, are 
available on the Board's Web site at ``http://www.stb.dot.gov.'' This 
hearing will be available on the Board's Web site by live video 
streaming. To access the hearing, click on the ``Live Video'' link 
under ``Information Center'' at the left side of the home page 
beginning at 9 a.m. on December 9, 2010.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: October 21, 2010.
    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.

Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2010-27104 Filed 10-26-10; 8:45 am]
BILLING CODE 4915-01-P