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Rule2024-01365

Revisions to Regulations for Expedited Relief for Service Emergencies

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Published

January 24, 2024

Effective

February 23, 2024

Issuing agencies

Surface Transportation Board

Abstract

The Surface Transportation Board (STB or Board) adopts a final rule amending its emergency service regulations.

Full Text

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<title>Federal Register, Volume 89 Issue 16 (Wednesday, January 24, 2024)</title>
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[Federal Register Volume 89, Number 16 (Wednesday, January 24, 2024)]
[Rules and Regulations]
[Pages 4564-4579]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01365]

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SURFACE TRANSPORTATION BOARD

49 CFR Parts 1011, 1104, 1115, and 1146

[Docket No. EP 762]

Revisions to Regulations for Expedited Relief for Service
Emergencies

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (STB or Board) adopts a final
rule amending its emergency service regulations.

DATES: The rule is effective February 23, 2024.

FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368. If
you require an accommodation under the Americans with Disabilities Act,
please call (202) 245-0245.

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. Over the last decade, railroad service challenges
impacting a wide range of geographic regions and commodities have
occurred with some frequency. See, e.g., U.S. Rail Serv. Issues--
Performance Data Reporting, EP 724 (Sub-No. 4) (STB served Dec. 30,
2014); STB Letter to CSX Transp., Inc. Requesting Serv. Reporting (July
27, 2017); Chairman Oberman Letter to Norfolk S. Regarding Serv. Issues
(Nov. 23, 2021); \1\ Urgent Issues in Freight Rail Serv., EP 770 (STB
served Apr. 7, 2022); Oversight Hearing Pertaining to Union Pac. R.R.'s
Embargoes, EP 772 (STB served Nov. 22, 2022).
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\1\ Letters available at <a href="http://www.stb.gov">www.stb.gov</a> (open tab ``News &
Communications'' and select ``Non-Docketed Public Correspondence'').
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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. At one such hearing in October
2017, several shippers observed that the Board's regulations at 49 CFR
part 1146, which implement 49 U.S.C. 11123 and govern 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 Press
Release, STB, Board to Hold Informal Meetings on Directed Serv. Reguls.
Beginning in Apr. (Mar. 15, 2018), <a href="http://www.stb.gov/news-communications/latest-news/archived-press-releases/">www.stb.gov/news-communications/latest-news/archived-press-releases/</a>.\2\ As a result, in the second
quarter of 2018 Board staff met with representatives of a variety of
entities representing carrier and shipper interests. A recurring
concern expressed by shipper interests was the amount of time required
under the existing procedures to obtain relief for service failures and
the difficulty of satisfying certain informational burdens. Although
carrier interests acknowledged that very few emergency service
petitions had been filed in recent years, they nevertheless generally
asserted that the existing procedures were sufficient, and noted that
the Board's Rail Customer and Public Assistance program (RCPA) had been
helpful in resolving acute service issues informally.
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\2\ 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 proceeding concerns only 49 CFR part 1146
(Expedited Relief for Service Emergencies) pursuant to 49 U.S.C.
11123.
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By decision served April 7, 2022, the Board announced that it would
hold a hearing on April 26 and 27, 2022, on rail service problems
impacting the network and the recovery efforts involving several Class
I carriers.\3\ As

[[Page 4565]]

the hearing notice explained, the Board had informally heard from a
broad range of stakeholders about inconsistent and unreliable rail
service throughout the network and across commodity groups. Urgent
Issues in Freight Rail Serv., EP 770, slip op. at 2. These challenges
included 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. Id.
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\3\ Press Release, STB, STB Issues Hearing Notice for Urgent
Issues in Freight Rail Serv. (Apr. 7, 2022), <a href="http://www.stb.gov/news-communications/latest-news/pr-22-21/">www.stb.gov/news-communications/latest-news/pr-22-21/</a>.
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On April 22, 2022, the Board issued a notice of proposed rulemaking
in this docket, proposing to amend its emergency service regulations.
Revisions to Reguls. for Expedited Relief for Serv. Emergencies (NPRM),
EP 762 (STB served Apr. 22, 2022).\4\ The Board explained in the NPRM
that if the service issues continue, they could result in an increased
need for emergency Board action to meet the needs of the public. NPRM,
EP 762, slip op. at 2. Indeed, since the issuance of the NPRM, the
Board has issued orders to address service emergencies. See, e.g.,
Foster Poultry Farms--Ex Parte Pet. for Emergency Serv. Ord., FD 36609
(STB served June 17, 2022) (issuing, just two days after the filing of
the petition seeking emergency service relief, an order under 49 U.S.C.
11123 directing Union Pacific to adhere, to the greatest extent
possible, to a schedule that Union Pacific itself put forward). In
addition, the Board has proposed new regulations that would, if
adopted, establish additional procedures to govern reciprocal switching
determinations related to service inadequacy. See Notice of Proposed
Rulemaking, Reciprocal Switching for Inadequate Serv., EP 711 (Sub-No.
2) (STB served Sept. 7, 2023).
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\4\ The NPRM was published in the Federal Register, 87 FR 25609
(May 5, 2022).
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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 when it determines that 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.''
\5\ When the Board determines 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. 49 U.S.C. 11123(a). 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, 5 U.S.C. 551-559). 49 U.S.C. 11123(b)(1). Board orders under 49
U.S.C. 11123 are subject to an initial time limit of 30 days, but they
may be extended up to an additional 240 days if the Board finds that
emergency conditions continue to exist. 49 U.S.C. 11123(a), (c).\6\
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\5\ 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).
\6\ In the case of an alternative carrier providing service over
an incumbent carrier's lines, the carriers themselves may establish
the terms of compensation and operations, with the Board available
to resolve disputes, including disputes about compensation, if any
arise. 49 U.S.C. 11123(b)(2).
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The current regulations at 49 CFR 1146.1(a) require that a
petitioner seeking relief show a substantial, measurable deterioration
or other demonstrated inadequacy in rail service by the incumbent
carrier over an identified period of time. Any petition for relief must
demonstrate that the standard 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. 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. 49 CFR 1146.1(b)(2)
and (3).
In the NPRM, the Board proposed to amend part 1146 by (1) modifying
the procedures for parties seeking a Board order directing an incumbent
carrier to take action to remedy a service emergency, (2) indicating
that the Board may act on its own initiative to direct emergency
service, (3) modifying the informational requirements for parties in
emergency service proceedings, (4) shortening the filing deadlines in
emergency service proceedings and establishing a timeframe for Board
decisions, and (5) establishing an accelerated process for certain
acute service emergencies. In response to the NPRM, the Board received
18 opening comments and five reply comments.\7\ Below, the Board
addresses the comments submitted and discusses the clarifications and
modifications being adopted in this final rule. The text of the final
rule is appended to this decision.
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\7\ Opening comments were filed by the Association of American
Railroads (AAR); the American Chemistry Council, the Corn Refiners
Association, and The Fertilizer Institute (collectively, the
Coalition Associations); American Fuel & Petrochemical Manufacturers
(AFPM); Agricultural Retailers Association (ARA); the Brotherhood of
Locomotive Engineers and Trainmen (BLET); CSX Transportation, Inc.
(CSXT); Industrial Minerals Association--North America (IMA); the
Military Surface Deployment and Distribution Command (SDDC); the
National Association of Chemical Distributors (NACD); the National
Mining Association (NMA); the National Grain and Feed Association
(NGFA); Norfolk Southern Railway Company (NS); Private Railcar Food
and Beverage Association (PRFBA); the Renewable Fuels Association
(RFA); the Transportation Trades Department, AFL-CIO (TTD); the U.S.
Department of Agriculture (USDA); the West Virginia Coal Association
(WVCA); and the Western Coal Traffic League, Freight Rail Customer
Alliance, National Coal Transportation Association, and Portland
Cement Association (collectively, Shipper Groups).
Reply comments were filed by AAR, the Coalition Associations,
NGFA, the National Industrial Transportation League (NITL) and the
Institute of Scrap Recycling Industries (ISRI), and the Shipper
Groups.
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Final Rule

Several commenters express support for the Board's proposal.\8\ For
example, ARA comments that the proposal would reduce barriers and
provide more certainty for both shippers and railroads, as well as
enable the Board to better address emergency service situations, thus
helping to prevent localized service issues from impacting the entire
network. (ARA Comment 1.) NACD points to the efficiencies the proposal
would bring, (NACD Comment 2), and emphasizes that such ``[a]ccessible
and efficient relief mechanisms are especially needed now in this
unprecedented time of supply chain problems,'' (id. at 4). Shipper

[[Page 4566]]

Groups argue that the proposed changes would clarify substantive
standards and improve the emergency service relief procedures, (Shipper
Grps. Comment 1-2), as well as encourage carriers to act more
responsibly to avoid emergency service issues in the first place, (id.
at 8). USDA agrees that the proposal would ``improve rail service in
times of disruption and incentivize railroads to maintain better
service overall.'' (USDA Comment 1.)
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\8\ (See, e.g., AFPM Comment 2; ARA Comment 1; IMA Comment 2;
NACD Comment 2; NGFA Comment 1-2; PRFBA Comment 2; RFA Comment 2;
Shipper Grps. Comment 1-2; SDDC Comment 1; USDA Comment 1.)
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AFPM, IMA, NACD, and PRFBA each note how infrequently the Board's
emergency service regulations have been utilized and argue that this
lack of use justifies review of the provisions. (AFPM Comment 6; IMA
Comment 7; NACD Comment 2-3; PRFBA Comment 7.) According to AFPM,
rather than pursuing emergency relief from the Board, refiners simply
accept the temporary disruptions, often adjusting production, storage,
or fleet size. (AFPM Comment 6-7; see also NACD Comment 2-3.) IMA
similarly states that its member companies have not petitioned the
Board for emergency service because the existing process requires
information unavailable to them and does not provide a timely result.
(IMA Comment 3.) Several commenters note that shippers choose not to
petition the Board for emergency relief because they fear retribution
from railroads. (AFPM Comment 6-7; PRFBA Comment 8 n.6; IMA Comment 8
n.6.) \9\
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\9\ AFPM requests that the Board investigate retribution by
railroads toward shippers through rate increases, reduction in
service days, and more. (AFPM Comment 6.) Similarly, WVCA asks the
Board to ``convene a specific examination and proceeding regarding
rail service and the movement of coal.'' (WVCA Comment 12.) While
these requests are outside the scope of this proceeding,
stakeholders may share information about these concerns through the
Board's RCPA program or request informal meetings with the Board, as
appropriate.
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Other commenters support the proposal but assert that the Board
should take further action. The Coalition Associations, for example,
express strong support for the proposal, stating that it provides
``critical improvements that will enhance the utility of emergency
service orders for some circumstances,'' but caution that the
rulemaking will not solve all, or even most, service problems.
(Coalition Ass'ns Comment 1-2; see also NMA Comment 2-3; NITL & ISRI
Reply 1.) TTD likewise supports the proposal but also argues that the
provisions in this rulemaking will not fully address the current rail
service problems, which it claims stem primarily from the railroads'
staffing, equipment, and scheduling decisions. (TTD Comment 1.) WVCA
states it supports the NPRM and encourages the Board to continue its
rail service oversight efforts. (WVCA Comment 2, 12.)
AAR, CSXT, and NS each express their support of the Board's efforts
to ensure the accessibility of service relief when necessary in times
of emergency. (AAR Comment 1; CSXT Comment 2; NS Comment 2.) AAR
supports ``the Board's effort to properly structure expedited relief
where appropriate and necessary to resolve emergency situations,'' and
proposes several modifications and additional clarifications. (AAR
Comment 1-2.) CSXT expressly supports certain aspects of the proposed
rule and expresses ``serious concerns'' about others. (CSXT Comment 2-
3.) NS ``supports review and appropriate updates based on sound policy
and evidence,'' but it notes that the Board has ``existing tools at its
disposal . . . that remain useful and effective to address service
issues in an expedited manner,'' and it offers ``three suggestions and
minor modifications'' to the proposed rule. (NS Comment 2.)
Clarifying Remedial Pathways. In the NPRM, the Board proposed
adding language to 49 CFR 1146.1(a) to clarify that it may direct an
incumbent carrier or alternative carrier to provide service and that it
can act on its own initiative as well as pursuant to a petition. NPRM,
EP 762, slip op. at 5. The Board noted these changes would better align
the Board's regulations with its statutory authority and provide
clarity to stakeholders. Id. Several commenters express support for one
or both of these clarifications, which merely codify the Board's
existing statutory authority.\10\
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\10\ NACD, NMA, and Shipper Groups express support for both
clarifications. (See NACD Comment 3; NMA Comment 2; Shipper Grps.
Comment 4.) CSXT,NITL, and ISRI state that they support clarifying
that the Board may direct an emergency service order at the
incumbent as well as the alternative carrier, (see CSXT Comment 2;
NITL & ISRI Reply 1), while AFPM, IMA, and PRFBA state they support
clarifying that the Board can act on its own initiative as well as
on petition, (see AFPM Comment 6; IMA Comment 7; PRFBA Comment 7; NS
Comment 2 (acknowledging that the statute provides the Board
authority to act on its own initiative)).
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Other commenters request additional modifications and
clarifications to other aspects of part 1146.1(a). Specifically, the
Coalition Associations request that the Board remove the phrase ``over
an identified period of time,'' arguing that service emergencies can
arise in short order and that this language suggests a shipper must
wait for some time to pass before petitioning the Board for emergency
service relief. (Coalition Ass'ns Comment 2.) NGFA and Shipper Groups
ask the Board to address the Board's authority to issue emergency
service orders on an ex parte basis. (NGFA Comment 3; Shipper Grps.
Comment 9 (citing Hasa, Inc. v. Union Pac. R.R., NOR 42165 (STB served
Aug. 21, 2019)).) According to Shipper Groups, the reply and rebuttal
filings permitted in 49 CFR 1146.1(b) are unnecessary when a second
carrier is not involved. (Shipper Grps. Comment 9.)
The Board finds it unnecessary to remove the phrase ``over an
identified period of time'' from 49 CFR 1146.1(a). This language does
not restrict petitioners from seeking emergency service orders in
quickly emerging situations because the section prescribes no minimum
period that must pass prior to filing. See Expedited Relief, EP 628,
slip op. at 8 n.14. In addition, as the Board has previously noted, the
language of 49 CFR 1146.1(a) in its current format affords the Board
the needed flexibility to address varying circumstances on a case-by-
case basis. See Expedited Relief, EP 628, slip op. at 8-9.
Regarding the request from NGFA and Shipper Groups that the Board
address its authority to issue emergency service orders on an ex parte
basis, the Board agrees that 49 U.S.C. 11123 permits the Board to order
emergency service without regard to Administrative Procedure Act
requirements. See 49 U.S.C. 11123(b)(1).\11\ Even though the Board is
modifying its regulations to improve the processing time when
emergencies occur, there may still be circumstances when the Board
needs to act on an ex parte basis. Under the current proposal, the
Board retains the statutory authority to order emergency service on an
ex parte basis in appropriate circumstances and may waive its
regulations when appropriate.\12\
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\11\ The Board is subject to the Administrative Procedure Act
when it establishes the terms of compensation if the railroads do
not agree. 49 U.S.C. 11123(b)(1) and (2).
\12\ The procedures in the proposed regulations do not address
situations when the Board is acting on its own initiative. NS argues
that the Board should ensure impacted rail carriers have an
opportunity to comment--either in writing or by telephonic
conference--before the Board orders emergency service in these
situations. (NS Comment 4.) Absent extraordinary circumstances, the
Board intends to afford carriers an opportunity to be heard even
when the Board acts on its own initiative.
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AAR and NS ask the Board to articulate a standard for the types of
emergency situations that would be eligible for relief under 49 CFR
part 1146. (AAR Comment 3; NS Comment 3.) They argue that emergency
service relief should be available only in ``real'' or ``true''
emergencies. (AAR Comment 2; NS Comment 2.) According to AAR,

[[Page 4567]]

without further guidance, the regulations could be used to ``secure
leverage and immediate attention to their particular service
complaints.'' (AAR Comment 5.) On reply, various commenters argue AAR's
request is unnecessary and overly restrictive. (See Coalition Ass'ns
Reply 9; NITL & ISRI Reply 3.) The Coalition Associations note that the
existing process has been in place for ``nearly 25 years without the
objective standards AAR deems `essential' '' and that the Board has
denied emergency relief when a petitioner has improperly invoked 49 CFR
1146.1. (Coalition Ass'ns Reply 9.) \13\ They argue that a case-by-case
approach is superior because the Board cannot anticipate every scenario
that may arise. (Coalition Ass'ns Reply 9-10; see also NITL & ISRI
Reply 3; Shipper Grps. Reply 2 (``[w]hether relief is appropriate
should be determined based on a full set of facts'').)
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\13\ In support of its argument, Coalition Association cite to
Granite State Concrete Company v. B&M Corporation, NOR 42083 (STB
served Sept. 15, 2003) (denying an emergency service order but
commencing a proceeding); Keokuk Junction Railway--Alternative Rail
Service--Line of Toledo, Peoria & Western Railway, FD 34397 (STB
served Oct. 31, 2003) (denying an emergency service order because
alleged service inadequacy was based primarily upon rate levels);
and Ohio Valley Railroad--Petition to Restore Switch Connection &
Other Relief, FD 34608 (STB served Feb. 23, 2005) (denying an
emergency service order but granting relief under 49 U.S.C. 10742).
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AAR also asks that the Board require petitioners seeking relief
under 49 CFR part 1146 to ``affirm that there are no alternative modes
available or feasible.'' (AAR Comment 17.) According to AAR, the Board
could not find there was a ``real'' emergency if the petitioner could
shift its traffic to truck, barge, or another mode. (Id.) In response,
the Coalition Associations note that it is unclear whether AAR is
asking the Board to require the petitioner to include a sworn statement
or market dominance analysis and that the latter would be impractical
in an emergency. (Coalition Ass'ns Reply 14.) The Coalition
Associations also assert that the ``time, cost, and uncertainty of
pursuing emergency service relief will always outweigh the additional
cost of a non-rail transportation alternative to avoid the emergency,''
so AAR's inference that shippers would petition for an emergency
service order when they have alternatives available is ``unrealistic
and cynical.'' (Coalition Ass'ns Reply 14; see also Shipper Grps. Reply
8 (``[O]ne would expect that a shipper that had a viable, economic
option to pursue would choose that option before seeking emergency
relief.'').) Shipper Groups claim that carriers are attempting to
increase the burden on petitioners by inserting a ``mini-market
dominance case'' into emergency service proceedings. (Id.)
AAR's and NS's proposal to limit the type of situations eligible
for emergency relief under 49 CFR part 1146 is not necessary and would
complicate the process, increase the burden on shippers, and undermine
the flexibility provided by the current regulations.\14\ In addition,
as various commenters have observed, the substantive standard in the
part 1146 regulations has been in place for nearly 25 years without
this limitation, during which time the Board has denied petitions where
it found the situation did not constitute an emergency. See, e.g., S.F.
Bay R.R.--Mare Island Pet. for Emergency Serv. Ord. & Pet. for
Declaratory Ord.--Lennar Mare Island, LLC, FD 35360, slip op. at 3 (STB
served Dec. 6, 2010) (denying an emergency service petition ``because
the record does not show that an emergency exists''). The Board has
previously emphasized that the emergency service procedures are ``not
meant to redress minor service disruptions,'' Expedited Relief, EP 628,
slip op. at 2, but rather provide temporary relief for serious ones,
id. at 8.
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\14\ In contrast, the Board has proposed using objective
standards, rather than a flexible case-by-case approach, to
determine when a reciprocal switching arrangement should be
prescribed, since objective standards in that context ``would create
an incentive for rail carriers to provide adequate service in the
first instance and because, if a rail carrier did not do so, the
affected shippers and receivers would then have more certainty in
their opportunities to obtain line-haul service from an alternate
carrier.'' See Notice of Proposed Rulemaking, Reciprocal Switching
for Inadequate Serv., EP 711 (Sub-No. 2), slip op. at 9-10 (STB
served Sept. 7, 2023). Those proposed objective standards seek to
``provide the certainty that is needed to protect the public
interest, as well as the interests of rail customers, in adequate
service on a general and sustained basis.'' Id. at 5. The Board made
clear, however, that these standards should not be used ``for the
prescription of emergency service under part 1146.'' Id. at 10-11.
The Board finds that a more flexible approach is appropriate here,
given the nature of an emergency finding, its related effects, and
generally shorter remedy period.
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The Board also declines to adopt AAR's suggestion to require
petitioners to affirm that no alternative modes of transportation are
feasible or available. Generally, it seems unlikely that a shipper
would seek emergency service relief from the Board if it has easy
access to other transportation options, as the Coalition Associations
have observed. However, in evaluating emergency service petitions, the
Board has considered and will continue to consider the transportation
environment in which the emergency occurs and the impact of the
inadequate rail service on the affected shippers. Roseburg Forest Prod.
Co.--Alt. Rail Serv.--Cent. Or. & Pac. R.R., FD 35175, slip op. at 7-8
(STB served Mar. 4, 2009); Pioneer Indus. Ry.--Alt. Rail Serv.--Cent.
Ill. R.R., FD 34917, slip op. at 9-11 (STB served Jan. 12, 2007).
NS expresses its concern that the Board might base an emergency
service order on the railroad performance data collected under 49 CFR
part 1250 without obtaining additional information from all parties
involved. (NS Comment 3.) NS argues that, although railroad performance
data might identify service trends, those trends do not necessarily
amount to service emergencies under 49 U.S.C. 11123. (Id.) The Board
appreciates the significance of ordering emergency service and the
operational, safety, and financial implications it may have on
carriers, and it anticipates getting more information beyond service
trends in individual emergency service cases to aid the Board in
appropriately resolving these matters. The procedures in the proposed
regulations thus allow an opportunity for carriers to provide specific
information to the Board about the situation at hand.
Lastly, AAR requests the Board either ``clarify that it will not
invoke [49 CFR] 1146.1 authority on its own motion if the issue has
been the subject of [an] RCPA informal dispute resolution process about
which the Board was aware,'' or add a requirement that the Board
``certify when it invokes its [49 CFR] 1146.1 authority on its own
motion, that none of the information leading to such invocation came
from an RCPA informal dispute resolution process.'' (AAR Comment 15.)
As the Board explained in the NPRM, RCPA serves as a resource for the
Board's stakeholders, and a key part of RCPA's mission involves
providing informal facilitation services to shippers and other parties
without charge to resolve disputes with railroads. Requests for RCPA
assistance, including informal facilitation services, are kept
confidential and not shared with other STB offices. Accordingly, the
Board does not find it necessary to add the language requested by AAR.
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 alternative carrier's existing customers and without
unreasonably interfering with the incumbent's overall ability to
provide service. As the Board discussed in the

[[Page 4568]]

NPRM, many 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
because potential alternative carriers may be reluctant to participate
in emergency alternative service. NPRM, EP 762, slip op. at 5. The
Board stated in the NPRM that requiring an advance commitment from an
alternative carrier as a condition to filing an emergency service
petition is an unnecessary burden on petitioners experiencing a service
crisis that undermines the usefulness of this important statutory
remedy. Id. at 5-6. Accordingly, the Board proposed removing that
requirement and instead requiring petitioners to submit only a list of
possible alternative carriers, based on the petitioner's understanding
of other rail carriers' nearby operations. Id. at 6.
The Board also proposed requiring the incumbent carrier and
alternative carriers, if any, to address in the first instance whether
the specific remedy proposed by the petitioner would be unsafe or
infeasible, or whether it would substantially impair the replying
carrier's ability to serve its other customers adequately or fulfill
its common carrier obligations. Id. Regarding the requirement that
petitions include an explanation of reasons why the incumbent carrier
is unlikely to restore rail service, the Board proposed to clarify that
the explanation need only take the form of a ``summary'' to the extent
that such information is available to the petitioner. Id. The Board
reasoned that these changes would place the informational requirements
on the parties most likely to have the information. Id.
According to NGFA, these changes are ``an extremely equitable and
more efficient way to ensure the Board is presented with the evidence
it needs to make a decision in an efficient manner.'' (NGFA Comment 4-
5.) Shipper Groups, AFPM, IMA, and PRFBA each express support for how
these changes place the burden to provide certain relevant information
on the entity likely to have direct knowledge of it. (AFPM Comment 8;
IMA Comment 10; PRFBA Comment 10; Shipper Grps. Comment 5-6.) Shipper
Groups argue that the changes would ``lead to the development of a
better evidentiary record and more efficient and expeditious decision-
making,'' further the rail transportation policy goals of requiring
fair and expeditious regulatory decisions when regulation is required,
and provide for the expeditious handling and resolution of proceedings.
(Shipper Grps. Comment 5-6 (citing 49 U.S.C. 10101(2), (15)).) AFPM,
IMA, and PRFBA note that these changes would incentivize rail shippers
to bring cases that may have gone unfiled in the past for lack of
evidence not within the petitioner's control. (AFPM Comment 8; IMA
Comment 10; PRFBA Comment 10.)
RFA projects that the Board's proposal to eliminate the requirement
for an advance commitment from an alternative carrier and instead
require only a list of potential alternative carriers would ease the
burden on petitioners, streamline the petition process, and minimize
disruptions in important customer service dynamics with carriers. (RFA
Comment 1.) According to NACD, NGFA, and Shipper Groups, the advance
commitment requirement has made it excessively difficult for shippers
seeking relief as the regulations intended. (NACD Comment 3; NGFA
Comment 4; Shipper Grps. Reply 6; see also Shipper Grps. Comment 6.)
According to Shipper Groups, an alternative carrier ``may be reluctant
to commit publicly in advance to providing alternative service,
especially if it is otherwise dependent on the incumbent carrier in
some way, such as a short line that is beholden to the affected carrier
for all or much of its business or otherwise subject to `paper
barriers' established by the incumbent.'' (Shipper Grps. Reply 6.) NITL
and ISRI contend that this change will enhance the utility of the
emergency service remedy. (NITL & ISRI Reply 2.)
On the other hand, AAR and CSXT oppose this change. AAR argues that
deferring the question of whether an alternative carrier is available
and able to provide emergency service would be impractical given the
short time frames, ``unfairly penalize the alternative carrier by
suddenly dragging them into an emergency proceeding as to which they
had no prior knowledge,'' and hinder the Board's ability to ``act
quickly and decisively, with knowledge of all relevant facts.'' (AAR
Comment 7.) According to AAR, for the Board to be aware of factors
affecting an alternative carrier's ability to provide service, such as
restrictions on service in labor contracts or operational difficulties
being experienced by the alternative carrier, the alternative carrier
must be ``involved on the frontend.'' (Id. at 9.) AAR claims its
concerns are exacerbated by the tight timelines proposed. (Id.)
CSXT argues that retaining the requirement for an advance
commitment would promote the speed and success of the emergency service
process and would ensure that any Board action is consistent with the
prohibition in 49 U.S.C. 11123 of any Board action that would ``cause a
rail carrier to operate in violation of this part'' or ``impair
substantially the ability of a rail carrier to serve its own customers
adequately, or to fulfill its common carrier obligations.'' (CSXT
Comment 6 (quoting 49 U.S.C. 11123(c)(2)(A)-(B)).) CSXT further argues
that requiring petitioners to obtain advance commitment from an
alternative carrier is not ``an obstruction'' to their ability to
obtain relief but rather ``essential'' because it ``can only expedite
the process by ensuring the [alternative] carrier is ready, willing,
and able to act at the earliest possible point in the remedial
process.'' (Id. at 7.)
AAR and CSXT both note that the Board--when it adopted 49 CFR
1146.1--considered and rejected the position the Board took in the
NPRM. (AAR Comment 8 (quoting Expedited Relief, EP 628, slip op. at
11); CSXT Comment 7.) AAR argues that nothing has changed since then
that would make an alternative carrier's advance commitment less
essential, (AAR Comment 8), and CSXT asserts that ``the Board must
offer a reasoned decision supported by substantial evidence for making
any change to [its] conclusion.'' (CSXT Comment 7-8 (citing Jicarilla
Apache Nation v. Dep't of Interior, 613 F.3d 1112, 1120 (D.C. Cir.
2010)).)
In response to these concerns, the Coalition Associations suggest
the Board require petitioners to serve their petitions on the
identified alternative carriers and to mandate that those carriers
participate in the process. (Coalition Ass'ns Reply 6, see also NGFA
Comment 5-6 (suggesting the Board mandate that identified alternative
carriers reply to a petition).) NGFA urges the Board to ``err on the
side [of] collecting as much relevant information as possible, as
quickly as possible, from the incumbent and an identified alternative
carrier.'' (NGFA Comment 6.) NITL and ISRI also oppose the carriers'
proposal to retain the advance commitment requirement, arguing that
elimination of this requirement would increase the usefulness of the
emergency service regulations. (NITL & ISRI Reply 3.)
The Board does not find AAR's and CSXT's concerns persuasive and
finds it in the public interest to eliminate the advance commitment
requirement, as was proposed in the NPRM. Requiring shippers to obtain
an advance commitment from an alternative carrier has unduly hindered
the objectives of the emergency service process for the reasons stated
in the NPRM, slip op. at

[[Page 4569]]

5-6, and by various commenters, see supra at 9-10, and removing this
obstacle will help the process work more effectively. As the Board
acknowledged in the NPRM, and as AAR and CSXT point out, the Board took
a different position in the 1998 decision, stating that the absence of
an advance commitment could create safety concerns, impair service to
the alternative carrier's customers, or hurt the alternative carrier's
finances. NPRM, slip op. at 5 (citing Expedited Relief for Serv.
Inadequacies, EP 628, slip op. at 11). However, as the Board explained
in the NPRM, feedback from rail users and the agency's own observations
have led the Board to conclude that the disadvantages of the advance
commitment requirement outweigh any potential advantages, and that the
concerns expressed in the 1998 decision can be adequately addressed
when considering individual requests. See id. Moreover, the inability
of shippers to obtain such advance commitments from alternative
carriers appears to have been a key driver in shippers' failure to use
the regulatory process at all. Id. In promulgating the original
regulations in 1998, the Board did not anticipate that the alternative
carrier commitment requirement would lead to that result, and AAR and
CSXT cite no precedent requiring the Board to ignore its experience
under the regulations. With regard to the NGFA's suggestion, the Board
will require an identified alternative carrier to reply to a petition.
Though the Board noted in the NPRM that it could take appropriate
action to request more information from an alternative carrier, it has
determined that--for the Board to best meet its information needs and
carry out its statutory obligations in a more efficient manner--the
Board will require that an alternative carrier address whether the
specific remedy would be unsafe or infeasible, or would substantially
impair the carrier's ability to serve its other customers adequately or
fulfill its common carrier obligations.
Numerous commenters support the Board's proposal to require
incumbent carriers to first address whether the proposed remedy would
be unsafe or infeasible or whether it would substantially impair the
replying carrier's ability to adequately serve its other customers or
fulfill its common carrier obligations.\15\ AFPM, IMA, and PRFBA assert
that such a procedural shift makes sense in proceedings where the ``use
of the discovery process [would be] too slow to allow the Board to act
expediently.'' (AFPM Comment 9; IMA Comment 10; PRFBA Comment 10.) NACD
also supports this proposed change, calling it a ``common sense
reform,'' (NACD Comment 3), and CSXT agrees that it is appropriate to
ask the rail carrier rather than the shipper to address the safety and
feasibility of the requested service, (CSXT Comment 3). BLET supports
the Board's proposal to allow an alternative carrier to reply to the
petition, arguing that its employees and members could provide valuable
insight into how operations are happening in the field. (BLET Comment
4.)
---------------------------------------------------------------------------

\15\ (See, e.g., AFPM Comment 8; BLET Comment 4; IMA Comment 10;
NACD Comment 3; PRFBA Comment 10; USDA Comment 1.)
---------------------------------------------------------------------------

The Coalition Associations suggest the Board consider requiring
railroads to provide certain minimum information to validate their
claims that a remedy is unsafe or infeasible, or that it will interfere
with their ability to serve their other customers. (Coalition Ass'ns
Comment 7.) Similarly, Shipper Groups ask the Board to require carriers
to make a ``specific and documented showing,'' rather than ``conclusory
assertions,'' of substantial impairment in order to defeat a request
for emergency service relief. (Shipper Grps. Comment 7.) According to
Shipper Groups, carriers will seek to preserve service that is more
profitable or that limits liquidated damages or other contractual
exposure. (Id.) The Coalition Associations also ask the Board to
clarify that a petition would not be defeated automatically if the
proposed emergency service would affect another shipper. (Coalition
Ass'ns Comment 8.)
AFPM, IMA, and PRFBA argue the Board should shift the burden of
proof to the railroads if a petitioner can demonstrate a prima facie
case of ``a substantial, measurable service deterioration or other
demonstrated inadequacy over an identified period of time by the
incumbent carrier.'' (AFPM Comment 9; IMA Comment 10; PRFBA Comment
10.) They further ask the Board to establish a defined standard for
that prima facie showing of service deterioration, which could be based
on, for example, the percentage of missed switches for first mile/last
mile, trip plan compliance data, or plant/facility shutdown/slowdown in
the past, present, or future. (AFPM Comment 9-10; IMA Comment 10-11;
PRFBA Comment 11.) AFPM, IMA, and PRFBA also suggest that in cases
where the incumbent railroad's reply fails to adequately rebut the
petitioner's prima facie case, the Board should issue its order five
days after the reply, effectively eliminating the rebuttal period and
expediting the case by two days. (AFPM Comment 11; IMA Comment 13;
PRFBA Comment 13.) AAR opposes this request, arguing that the Board's
authority under 49 U.S.C. 11123 is ``limited to emergency situations,
not generalized service complaints,'' and that service metrics,
``whether based on first-mile/last-mile data or trip plan compliance,
are ill-suited to the identification of emergencies.'' (AAR Reply 4-5.)
AAR further argues that proponents of a Board order are required to
make their case in support of the order, and that it would be unfair to
further shorten a carrier's response time while also shifting the
burden to the carrier. (Id. at 5.)
Since emergencies can take various forms, flexibility is critical
in determining whether a particular situation constitutes an emergency
requiring expeditious Board action. The Board will not attempt to
define the required minimum information appropriate for every case, nor
will it establish a requirement for a carrier to make ``a specific and
documented showing'' of substantial impairment in its ability to serve
its other customers to defeat a request for an emergency service order.
The Board seeks to gain a quick and accurate understanding of the
circumstances underlying requests for relief so it can act to serve the
public when necessary, not bog proceedings down with technical
requirements that might undermine the purpose of these emergency
proceedings. To be sure, especially given the expedited timelines, the
Board expects that parties will support their claims with available
evidence. The Board will not accept bald assertions regarding
feasibility or safety as evidence of such, but circumstances will
unfold differently from case to case, and the Board must maintain
flexibility so it can evaluate all aspects of a case and act
appropriately.\16\ Additionally, emergencies often arise from
unexpected or unanticipated circumstances, and the Board must have the
flexibility to respond to those circumstances promptly.
---------------------------------------------------------------------------

\16\ The Board is mindful that whether railroad operations are
safe is generally within the purview of the Federal Railroad
Administration (FRA). The Board's regulations accordingly require
that petitions for emergency service relief under part 1146 be
served on FRA. See 49 CFR 1146.1(e), 1146.2(e). Carriers should
demonstrate that they have undertaken the requisite advance planning
necessary to assure safe operations, including consideration of FRA
safety regulations. See Expedited Relief, EP 628, slip op. at 13
n.19.
---------------------------------------------------------------------------

The Board also clarifies that petitions, regardless of whether they
seek emergency service from incumbent carrier or an alternative, will
not automatically be defeated simply

[[Page 4570]]

because the proposed emergency service order would affect another
party. Rather, the concern lies with whether a proposal would
``substantially impair'' a carrier's ability to serve its other
customers or fulfill its common carrier obligations, which is why the
Board is asking for replies from carriers to address this matter.
Pursuant to 49 U.S.C. 1146.1(a), the Board will then consider this
information and the effects on other shippers of ordering emergency
service as part of its analysis when determining whether emergency
service is suitable under the circumstances and whether to order
relief.
In addition, the Board declines to shift the burden of proof onto
carriers by requiring a petitioner only to make a defined prima facie
showing of a substantial and measurable service deterioration or
another demonstrated service inadequacy, as requested by certain
shipper interests. As AAR notes, this would shift the burden from
petitioners to carriers while also giving carriers less time to
respond. While the regulations adopted here seek to remove unnecessary
burdens on petitioners, such as obtaining the advance commitment from
alternative carriers, petitioners must still bear the burden of
establishing the need for such relief.
CSXT and NS ask the Board to require petitioners seeking relief
under 49 CFR 1146.1 to describe the efforts taken to resolve the issue
through other means, as the Board is proposing for the new, accelerated
process under 49 CFR 1146.2. (CSXT Comment 11; NS Comment 12.)
According to CSXT, ``it would be appropriate to likewise encourage good
faith efforts at informal dispute resolution prior to seeking the
extraordinary relief of an emergency service order.'' (CSXT Comment
11.) NS notes that the Board's reasoning for including this requirement
in 49 CFR 1146.2, which it states appears related to the timeline of
the accelerated process, seems to apply equally to the 49 CFR 1146.1
process, which the Board also proposes to shorten. (NS Comment 12.)
The Board agrees that it is appropriate to require petitioners
seeking relief under 49 CFR 1146.1 to describe efforts taken to resolve
issues prior to the filing of the petition. The Board prefers informal
resolution of disputes whenever possible, and requiring petitioners to
describe efforts taken to arrive at solutions prior to emergency
service will encourage parties to make such efforts in good faith
rather than seeking an order from the Board as a matter of first
resort. Moreover, many petitions already include this information to
some degree, given that the current regulations require petitions to
include a ``summary of the petitioner's discussions with the incumbent
carrier of the service problems,'' so mandating that petitioners
describe their efforts at resolution in 49 CFR 1146.1 would not
significantly increase their burden. Finally, requiring this
information in 49 CFR 1146.1 petitions would better align that process
with the 49 CFR 1146.2 process and help ensure that the Board receives
all information necessary to understand the underlying emergency and
overall circumstances. 49 CFR 1146.1(b)(ii) will be amended to adopt
this requirement.
Shipper Groups argue that a carrier should face additional
consequences, such as penalties or damages, when it has ``deprived
itself of the ability to meet its commitments and obligations'' due to
underinvestment in employees and other resources, particularly when it
cannot provide emergency service due to this underinvestment. (Shipper
Grps. Comment 8.) According to Shipper Groups, penalties would
incentivize carriers to act more proactively to maintain their service
commitments and reduce the need for emergency service orders
altogether. (Id.) NGFA agrees, adding that the Board should more
aggressively penalize carriers that do not comply with emergency
service orders or are unable to provide emergency service relief due to
business or operational decisions. (NFGA Reply 3-4.) NGFA further
contends that the Board should interpret the phrase ``each violation''
more broadly, for example, on a per-car basis instead of a per-train
basis. (Id. at 4.) AAR, in contrast, maintains that a punitive approach
is not authorized by 49 U.S.C. 11123, which contemplates alternative
carriers compensating incumbent carriers for the use of incumbents'
equipment and facilities. (AAR Reply 2-3 (quoting Pyco Indus., Inc.--
Alt. Rail Serv.--S. Plains Switching, Ltd. Co., FD 34889 et al, slip
op. at 4-5 (STB served Jan. 11, 2008)).)
The Board will not adopt these changes suggested by Shipper Groups
and NGFA. Section 11123, from which the Board derives its emergency
authority, contains no language or provision authorizing penalties or
damages. Furthermore, the Board rejected similar arguments when
adopting the existing regulations, noting that emergency service relief
``is to be used for restorative or alleviative purposes only, and not
as a punitive or preventive measure.'' Expedited Relief, EP 628, slip
op. at 7.\17\
---------------------------------------------------------------------------

\17\ See also Notice of Proposed Rulemaking, Reciprocal
Switching for Inadequate Serv., EP 711 (Sub-No. 2), slip op. at 10
(STB served Sept. 6, 2023) (distinguishing the standard for
obtaining a reciprocal switching order from complaint-based common
carrier obligation cases under 49 U.S.C. 11101(a)).
---------------------------------------------------------------------------

Finally, APFM, IMA, and PRFBA want the Board to create a
``reasonable railroad standard'' requiring ``the incumbent railroad to
cooperate in a reasonable manner with the petitioner and the
alternative carrier, while the [emergency service] order is in
effect.'' (AFPM Comment 10; IMA Comment 11-12; PRFBA Comment 11-12.)
The Board finds that implementing such a ``reasonable railroad''
standard is not necessary because acting reasonably, in good faith and
in compliance with Board orders, is already required. See 49 U.S.C.
10702. Any allegation of unreasonableness, bad faith or non-compliance
can and will be dealt with on a case-by-case basis.
Modifying the Regulatory Timeframe. In response to stakeholders'
previously-expressed concerns about the overall length of the current
49 CFR 1146.1 process, as well as the lack of a date certain by which a
Board decision can be expected, the Board proposed in the NPRM to
shorten the filing deadlines for replies and rebuttals set forth in 49
CFR 1146.1 and to establish a target timeframe for a Board decision.
NPRM, EP 762, slip op. at 7. The Board explained that 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
all parties involved in an emergency service proceeding. Id.
Many commenters support this aspect of the Board's proposal.\18\
AFPM, IMA, and PRFBA assert that shortening the procedural timeline
would expedite the proceeding where time is clearly of the essence.
(AFPM Comment 10-11; IMA Comment 13; PRFBA Comment 13.) NGFA asserts
that a short timeline is imperative to avoid severe damage to a
petitioner's business and customers since shippers will have exhausted
all commercial remedies before seeking Board intervention. (NGFA
Comment 5.) According to Shipper Groups, the Board's proposal to
shorten the filing deadlines and establish a target timeframe for a
Board decision is reasonable and appropriate. (Shipper Grps. Comment
8.)
---------------------------------------------------------------------------

\18\ (See AFPM Comment 10-11; BLET Comment 4; IMA Comment 13;
NACD Comment 3; NGFA Comment 5; PRFBA Comment 13; RFA Comment 2;
Shipper Grps. Comment 8; USDA Comment 1.)
---------------------------------------------------------------------------

Several commenters ask the Board to shorten the 49 CFR 1146.1
timeline further still. According to RFA, ``the modified timeline is
too lengthy to

[[Page 4571]]

efficiently address emergencies in a timely manner.'' (RFA Comment 2.)
RFA explains that because ethanol facilities can typically store less
than one week's production on-site, shortening the process by a few
days would not fully address emergency situations at these facilities.
(Id.) ARA presents a similar argument, noting that timely delivery of
products, such as fertilizer, is critical for agricultural retailers as
crop production is weather-dependent and seasonal. (ARA Comment 1.)
\19\
---------------------------------------------------------------------------

\19\ BLET asks the Board to permit extension of the deadlines if
all parties agree, (BLET Comment 4), and AFPM, IMA, and PRFBA urge
the Board to grant extension requests in extraordinary circumstances
only, (AFPM Comment 11, IMA Comment 13; PRFBA Comment 13). In most
cases, extension requests agreed upon by all parties to an emergency
service proceeding are likely to be appropriate. However, given the
urgent nature of the situations underlying emergency service
proceedings, the Board will grant unilateral extension requests only
for good cause. The Board will amend 49 CFR 1104.7 to clarify that
requests for an extension under 49 CFR part 1146 must be filed as
early as possible under the circumstances.
---------------------------------------------------------------------------

AAR opposes shortening the timeline under 49 CFR 1146.1, arguing
that ``[r]educing the time available for the parties to make an
adequate record is not the solution to uncertainty over how quickly
relief will be ordered,'' and suggests that modifying the proposed rule
to provide firm decision deadlines may help alleviate this concern.
(AAR Comment 13; see also CSXT Comment 12 (asking the Board to provide
firm decision deadlines for 49 CFR 1146.1 and 1146.2).) AAR notes that
the Board previously rejected shorter timelines and argues that the
concerns expressed in that decision remain valid today. (AAR Comment 12
(quoting Expedited Relief, EP 628, slip op. at 16 (``[w]e do not
believe that a shorter time frame is feasible, given the nature of the
relief sought, the need for an adequately developed record regarding
the factual predicate for such action, and the ability of the parties
to implement the proposed arrangement safely and without harm to either
railroad or their other shippers.'').) According to AAR, shortening the
timeline is even less feasible under the current proposal because the
Board is also eliminating the requirement that petitioners obtain an
advance commitment from an alternative carrier. (Id.) AAR asserts
petitioners can consider the total timeline when deciding when to file
a petition. (Id. at 13.) In addition, AAR urges the Board to reject the
requests to further shorten the proposal's timelines. (AAR Reply 6.)
AAR claims the proposal's timelines are ``already so short as to strain
feasibility'' and asserts shippers can time the filing of their
petitions ``to ensure relief can be provided in the correct amount of
time.'' (Id.)
On reply, Shipper Groups assert that AAR's proposals are
unnecessary or at least speculative at this time, and they state that a
firm decision deadline might prevent the Board from taking the time
that is needed in complex situations. (Shipper Grps. Reply 7.) The
Coalition Associations state they are amenable to forgoing the
shortening of the timelines in 49 CFR 1146.1 since the Board has
proposed an accelerated process in 49 CFR 1146.2. (Coalition Ass'ns
Reply 6-7.)
The Board is not persuaded by AAR's arguments for retaining the
existing timeline in 49 CFR 1146.1. As explained in the NPRM, the Board
agrees with stakeholders that have expressed concern that the process
in 1146.1 is too lengthy in the context of a service emergency. NPRM,
EP 762, slip op. at 7. Although the Board rejected a shorter timeframe
in 1998, its subsequent experience with 49 CFR 1146.1 has convinced the
Board that a shorter time frame would in fact be feasible, contrary to
what the Board anticipated when it adopted these regulations. See
Foster Farms--Ex Parte Pet. for Emergency Serv. Ord., FD 36609 (STB
served June 17, 2022).
Because the final rule includes an accelerated process for acute
service emergencies, the Board does not find it necessary to further
shorten the timelines in 49 CFR 1146.1 beyond the periods initially
proposed in the NPRM. The Board will also refrain from setting a firm
decision deadline in the regulations. The Board intends to issue
decisions within five days of the rebuttal deadline, as proposed in the
NPRM, but setting a firm deadline for this part of the regulations
would serve only to complicate the decision-making process by
constraining the Board (or requiring additional procedural decisions)
in situations where a specific deadline might prove to be
impracticable. The Board again emphasizes that flexibility is vital in
conducting these proceedings.
Establishing an Accelerated Process to Handle Acute Service
Emergencies. In an effort to more efficiently address the most urgent
service emergencies in a more expeditious manner, the Board proposed in
the NPRM to establish a new, accelerated process at new 49 CFR 1146.2
for certain acute service emergencies presenting potential imminent
harm and threatening potentially severe adverse consequences to the
petitioner, its customers, or the public. NPRM, EP 762, slip op. at 7.
Under the new process proposed by the Board, a petitioner seeking
accelerated relief must indicate that it 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,\20\ 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. Id. To satisfy this standard, the Board
proposed that the petitioner must demonstrate the alleged harm will
occur before any relief could be ordered under 49 CFR 1146.1 and that
any relief ordered by the Board pursuant to 49 CFR 1146.1 would be
rendered ineffective. NPRM, EP 762, slip op. at 7. The Board noted that
such severe adverse circumstances would 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. Id. Additionally, the Board proposed that the petition must
include a verified description of any efforts taken to resolve the
issue through other means, such as consultation with RCPA or direct
discussions with the incumbent railroad. Id. at 8. The Board proposed
to limit the length of petitions to three substantive pages (not
including cover page, verifications, or certificate of service), noting
that a petitioner could present further evidence in support of its
petition during a telephonic or virtual hearing. Id.
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\20\ Because the statute limits the Board's emergency service
authority to the actions enumerated in 49 U.S.C. 11123(a), the
proposal limited any relief ordered pursuant to the accelerated
process to the actions listed in the statute. NPRM, EP 762, slip op.
at 7 n.9.
---------------------------------------------------------------------------

Under the Board's proposal, a petition filed under the proposed 49
CFR 1146.2 would be assigned to a designated Board Member for initial
resolution. NPRM, EP 762, slip op. at 8. The Board proposed that the
Board Member designation would rotate on a quarterly basis, and if the
designated Board Member is unavailable, the next Board Member in the
rotation would be assigned to evaluate the petition. Id. The designated
Board Member would notify the parties regarding a telephonic or virtual
hearing to be held between 24 and 48 hours after receipt of the
petition or as soon thereafter as logistically possible. Id. Given the
accelerated process, the Board's proposed schedule did not include a
period for written replies--oral replies to the petition would occur
during the hearing--however, the designated Board Member could order

[[Page 4572]]

the carriers to submit, or the carriers could voluntarily submit, an
alternative plan to address the emergency within 24 hours of the
hearing. Id. The Board's proposal contemplated an initial decision on
the merits of the petition by the designated Board Member within two
business days after completion of the hearing. Id. That initial
decision could be appealed to the entire Board pursuant to 49 CFR
1115.2. Id.
The Board proposed that any relief granted under 49 CFR 1146.2
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. NPRM, EP 762, slip op. at 8-9. Given the
accelerated nature of this process, the Board also proposed a 20-day
limit on relief, which it stated should provide petitioners with
sufficient time to pursue relief up to 240 days, if necessary, under 49
CFR 1146.1. Id. at 9. Under the Board's proposal, if a petition for
relief under 49 CFR 1146.2 is denied for failure to satisfy the
standard for relief, the petitioner may 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. NPRM, EP 762, slip op.
at 8.
According to the Coalition Associations, the creation of this new
accelerated process is the ``single most impactful proposal'' in the
NPRM. (Coalition Ass'ns Comment 2.) NACD also supports the creation of
this new accelerated process, noting that emergencies require immediate
action and accelerating the timeliness would facilitate relief in
emergency situations. (NACD Comment 3.) SDDC states that it ``sees the
potential for a significant improvement from adding [49 CFR] 1146.2,''
(SDDC Comment 1), and NITL and ISRI state that the creation of this new
process is a critical change that will enhance the usefulness of the
Board's emergency service regulations, (NITL & ISRI Reply 1-2). AFPM,
IMA, NGFA, RFA, and USDA also indicated their support of the new
proposed process at 49 CFR 1146.2. (AFPM Comment 12; IMA Comment 14;
NGFA Comment 6; RFA Comment 2; USDA Comment 1.)
AAR, CSXT, and NS urge the Board to discard its proposal for a new
accelerated process. According to AAR, the new accelerated process is
``fundamentally unfair and impracticable,'' and the ``extreme
limitations on development of a record and meaningful opportunity to be
heard present substantial questions of procedural fairness and due
process.'' (AAR Comment 13.) AAR notes that neither the incumbent nor
any alternative carrier would have the opportunity to reply in writing
to a petition and claims ``the incumbent (and any alternative carrier)
will have virtually no time to investigate the few facts provided'' in
the three-page petition. (Id.) AAR doubts the timeline would allow the
Board to ``make a responsible decision'' and asserts its concerns are
exacerbated by the fact that petitioners would not be required to
obtain an advance commitment from an alternative carrier. (AAR Comment
13-14; see also CSXT Comment 10 (``The proposed acceleration to the [49
CFR] 1146.1 process is as fast as the Board could reasonably act in a
manner that ensures that the parties and the Board have sufficient time
to both gather and analyze the available information to make a wise
decision with such an extraordinary power.'') (emphasis omitted); NS
Comment 4 (``[T]he proposed accelerated process will not allow for the
development of a factual record upon which the Board can act.'').)
CSXT argues it is unnecessary to create a second process when the
Board is shortening the existing process. (CSXT Comment 9.) According
to CSXT, because the Board's authority under 49 U.S.C. 11123 is limited
to acute service emergencies, there is ``no authority for an even more
extraordinary remedy for a different category of emergency--emergent is
emergent.'' (CSXT Comment 9.) CSXT also asserts the Board has not
explained why ``acute service emergencies'' cannot be handled under 49
CFR 1146.1 or through the Board's injunctive authority at 49 U.S.C.
1321(b)(4). (CSXT Comment 9.)
NS likewise cites to the Board's injunctive authority as a reason
for discarding the proposed new process, noting that the Board has in
the past granted an injunction where emergency service was sought. (NS
Comment 5 n.4 (citing Cent. Valley Ag Grinding, Inc. v. Modesto &
Empire Traction Co., NOR 42159, slip op. at 7 (STB served June 12,
2018).) NS further argues that the Board previously declined to shorten
the timeline of 49 CFR 1146.1 and that there is no evidence a faster
process is ``needed or superior to the current expedited timeline in
[49 CFR] 1146.1.'' (NS Comment 5.) NS asserts that if the Board is
concerned about the timeline of the 49 CFR 1146.1 process, the Board
can eliminate the rebuttal period. (NS Comment 5 n.4.)
On reply, the Coalition Associations urge the Board to reject the
carriers' requests to abandon the accelerated process and suggest
several modifications to address the concerns raised. (Coalition Ass'ns
Reply 8.) First, the Coalition Associations suggest that rather than
discarding the new accelerated process, the Board could discard its
proposal to shorten the existing 49 CFR 1146.1 process. (Coalition
Ass'ns Reply 8.) According to the Coalition Associations, the
accelerated process would sufficiently address shippers' concerns that
the 49 CFR 1146.1 process is ``too slow and cumbersome for the most
time-sensitive emergencies.'' (Coalition Ass'ns Reply 8.) The Coalition
Associations also state they are open to limiting the relief available
under 49 CFR 1146.2 to incumbent-based relief only. (Coalition Ass'ns
Reply 8-9.)
NITL and ISRI also oppose the carriers' proposal to jettison the
accelerated process, noting that it offers one of the ``greatest
opportunit[ies] to improve the usefulness of the [Board's
regulations].'' (NITL & ISRI Reply 3.) Shipper Groups argue that
``[t]here is no basis to conclude at this stage that any railroad will
be deprived of a fair hearing without the opportunity to make a written
presentation.'' (Shipper Grps. Reply 8.)
The Board finds that an accelerated process is warranted to address
acute service emergencies more efficiently. As noted in the NPRM, the
most serious issue identified by stakeholders was the timeliness of
regulatory action in situations involving acute service emergencies. In
certain instances, the process in 49 CFR 1146.1 would simply take too
long (even under the shortened 1146.1 timeline adopted in this final
rule) for a shipper facing an acute emergency to utilize it
effectively, even though the shipper might otherwise qualify for
emergency service relief. The accelerated process addresses this
timeliness issue by streamlining the petition process in certain
emergency situations to allow the Board to act quickly while providing
it with enough time to make a responsible decision while maintaining
adequate due process for carriers.\21\
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\21\ The Board appreciates the Coalition Associations'
suggestion that 1146.2 might make it possible to discard its
proposal to shorten the deadlines for 1146.1, but concludes that the
best solution is to adopt 1146.2 and to shorten the deadlines under
1146.1. The situations that justify the use of 1146.1 are
emergencies, even if they are not ``acute'' emergencies, so a faster
timeline will be beneficial.
---------------------------------------------------------------------------

Although the process will be short, carriers will have a meaningful
opportunity to reply to the petition, and the provision of an oral
response at a hearing is consistent with 49 U.S.C. 11123, which
intended summary procedures in these emergency

[[Page 4573]]

situations.\22\ Additionally, the regulations do not preclude the
provision of written comments by the rail carriers; it simply does not
provide specific extra time for them in the necessarily short schedule.
Nor will the filing of a petition be the first opportunity for carriers
to investigate the circumstances surrounding the particular service
issue. Prior to filing at the Board, a petitioner would have to engage
in the process mandated by 49 CFR 1146.2(a), which requires that
parties seek, in good faith, to resolve any service issues through an
informal dispute resolution process first. Finally, the accelerated
process limits relief to no more than 20 days, and parties may petition
the Board to reconsider its decision.\23\ The Board understands the
gravity of issuing emergency service orders and finds that this new
process will accommodate the procedural rights of all parties while
affording the Board the ability to swiftly act on behalf of the public
interest in necessary situations, as Congress intended.\24\
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\22\ As noted above, the Board's decision would not be subject
to the APA. See 49 U.S.C. 11123(b)(1).
\23\ NS contends that the Board should not adopt a shorter
1146.2 process because it rejected a shorter 1146.1 process when it
adopted the rule in 1998. (NS Comment 5.) But the fact that relief
under 1146.2 is significantly more limited than relief under 1146.1
(a distinction that did not exist in 1998) weighs in favor of a
shorter time frame. See Expedited Relief, EP 628, slip op. at 16.
Also, the absence of rebuttal and reply periods in 1146.2 will
facilitate a faster process. Moreover, as explained above in
connection with 1146.1, the Board has reevaluated its views of the
feasibility of faster timelines than the one established in 1998.
\24\ NS argues that the 1146.2 process is unnecessary because
the Board could issue preliminary injunctions instead, but the
emergency service standard is different from the preliminary
injunction standard, as discussed in more detail below. The fact
that the Board has found it appropriate under certain circumstances
to issue preliminary injunctions in lieu of emergency service orders
does not mean that preliminary injunctions are an adequate
substitute for 1146.2.
---------------------------------------------------------------------------

Concerning the standard for relief proposed by the Board, the
Coalition Associations state that the proposal ``reasonably restricts
this process to circumstances that threaten severe consequences to the
shipper, its customers, or the public that cannot be avoided using the
[49 CFR] 1146.1 procedures.'' (Coalition Ass'ns Comment 3.) However,
several commenters ask the Board to define ``acute service emergency''
more clearly. AFPM, IMA, and PRFBA urge that the Board permit any plant
shutdown to qualify for relief under this new process, arguing that any
shutdown is acute. (AFPM Comment 12; IMA Comment 14; PRFBA Comment 14.)
AFPM suggests removing the requirement that plant shutdowns be
``extended,'' (AFPM Comment 12), and IMA and PRFBA suggest removing the
requirement that plant shutdowns be ``immediate and extended,'' (IMA
Comment 14; PRFBA Comment 14). NMA expresses concern that entities may
interpret ``acute service emergency'' differently and notes that if
there are multiple emergencies at the same time, the Board may need to
weigh one emergency over the other. (NMA Comment 3.)
AAR opposes allowing any plant slowdown or shutdown to qualify
under 49 CFR 1146.2, arguing that not all plant slowdowns, shutdowns,
or even closures are genuine emergencies that would qualify for
emergency service relief.\25\ (AAR Reply 5-6.) According to AAR,
``shutdowns and closures can often be remedied with monetary damages.''
(AAR Comment 6.) AAR and NS both argue the accelerated process, if
adopted, should be more narrowly tailored, available only if the
petitioner will experience immediate and irreparable harm, as is
required for a preliminary injunction or temporary restraining order.
(AAR Comment 6; NS Comment 6-7.) NS notes emergency service orders are
similar to preliminary injunctions in that both are extraordinary
remedies, (NS Comment 7), and AAR argues that much like temporary
restraining orders, petitions brought under 49 CFR 1146.2 would be
decided pursuant to a short procedural schedule with ``minimal
opportunity for response from the involved railroad[s],'' (AAR Comment
6 (brackets in original)).
---------------------------------------------------------------------------

\25\ The Board agrees that not all ``immediate plant shutdowns''
are genuine emergencies that would qualify for relief under 1146.2
and, as reflected in the language of 1146.2, that it is highly
unlikely that a plant ``slowdown'' would ever constitute a genuine
emergency under 1146.2.
---------------------------------------------------------------------------

Shipper Groups and the Coalition Associations both take issue with
AAR's suggestion that not all plant shutdowns meet the statutory
requirements for an emergency under 49 U.S.C. 11123. (Shipper Grps.
Reply 2; Coalition Ass'ns Reply 10.) According to Shipper Groups, the
basis for relief should be decided in individual adjudications, not
based on hypothetical facts at the rulemaking stage. (Shipper Grps.
Reply 2.)
Shipper Groups and the Coalition Associations also both oppose
applying the standard for injunctions at 49 U.S.C. 1321(b)(4) to
emergency service petitions. (Shipper Grps. Reply 4; Coalition Ass'ns
Reply 12.) The Coalition Associations argue that the irreparable harm
standard considers whether the petitioner could be made whole, whereas
the Board's emergency service authority is also exercised for the
public interest. (Coalition Ass'ns Reply 12-13). According to Coalition
Associations, ``[i]t is entirely conceivable that the petitioner could
be made whole with monetary damages, but the broader public interest
could not.'' (Id. at 13.) The Coalition Associations further argue that
monetary damages are not a realistic remedy for plant shutdowns as most
contracts and tariffs allow only for direct damages (i.e., primarily
the additional cost of alternative transportation) but not
consequential damages.\26\ (Id. at 10.) According to Shipper Groups,
the fact that shippers need to seek emergency relief in the first place
is evidence that the ``other types of proceedings'' AAR references are
insufficient and fail to deter carriers from curtailing service.
(Shipper Grps. Reply 2 (quoting AAR Comment 5).) According to Shipper
Groups, the economic losses shippers face from rail service failures
can be massive, and the carriers' proposal would ``categorically
preclude[]'' shippers and their customers from receiving emergency
service. (Shipper Grps. Reply 3-4.)
---------------------------------------------------------------------------

\26\ The Coalition Associations further note that captive
shippers, which they claim have the greatest need for emergency
service, have the least ability to use alternative transportation.
(Coalition Ass'ns Reply 10-11.)
---------------------------------------------------------------------------

The Board will revise the portion of 49 CFR 1146.2(a) that states
``immediate and extended plant shutdowns'' to simply state ``immediate
plant shutdowns.'' Striking ``extended'' as a qualifier allows the
Board to consider how the impact of a shutdown will vary by industry.
In some industries, for example, imminent significant harm and severe
adverse consequences could occur immediately upon plant shutdown. This
change will allow the Board to better assess petitions for emergency
relief based on the circumstances of the underlying emergency.\27\
---------------------------------------------------------------------------

\27\ 49 CFR 1146.2 will also be revised to include reference to
49 U.S.C. 11123 in a manner similar to 49 CFR 1146.1.
---------------------------------------------------------------------------

The irreparable harm standard applicable to injunctions under
section 49 U.S.C. 1321(b)(4) will not be imported by the Board to its
consideration of emergency petitions under 49 U.S.C. 11123. Congress
has kept separate the emergency service and preliminary injunction
powers of the Board. The Board sees no reason to conflate the general
preliminary injunction standard in 49 U.S.C. 1321(b)(4) with the more
specific emergency issues arising under 49 U.S.C. 11123, which provides
an independent standard for when it applies, see 49 U.S.C. 11123(a).

[[Page 4574]]

NGFA and AAR ask the Board to clarify the phrase ``food security.''
More specifically, NGFA asks the Board to clarify that the new
accelerated process could be used in situations presenting a ``clear
and present threat to the health of livestock.'' (NGFA Comment 6.) NGFA
states that railroads' failures to deliver corn, which its members
process into feed for livestock, can be damaging and potentially
catastrophic to the health of livestock populations. (Id.) AAR
questions what the phrase would include (e.g., does it cover a shortage
of pet food, livestock feed, potato chips, or soda) and asserts it is
not clear ``what a threat to `food security' would entail in the
railroad context.'' (AAR Comment 7.) The Coalition Associations argue
that ``food security'' need not be defined more clearly as it is
``common sense'' and note that food security is ``traced back to the
ultimate food sources, not the manufactured products in the AAR's
hypotheticals.'' (Coalition Ass'ns Reply 11.)
Further clarification of ``food security'' is unnecessary at this
time. While the Board agrees with the Coalition Associations that
shortages of the ultimate food sources are more likely to constitute an
emergency than shortages of manufactured products, the Board cannot
anticipate all circumstances of potential food security-related
emergencies. Instead, a case-by-case application that affords the Board
flexibility in addressing situations based on the specific conditions
of each case will best allow the Board to apply these regulations
appropriately.
SDDC requests the Board add ``a threat to national defense'' to the
standard for relief under 49 CFR 1146.2. (SDDC Comment 1.) SDDC states
that ``national defense is one very important aspect of the public
interest, and the timely deployment of military units to a port or
timely movement of critical defense materiel are important to that
end.'' (Id.) AAR states it does not object to this change if the
accelerated process is adopted. (AAR Reply 7.) The Board of course
agrees that national defense is critical to the public interest and
will therefore include language in 49 CFR 1146.2 to reflect that the
accelerated process is an appropriate mechanism for addressing threats
to national defense related to rail service.
Regarding the proposed petition requirements under 49 CFR 1146.2,
AAR requests that the Board require a petitioner to include in its
petition that it has ``previously notified the incumbent railroad of
the emergency and its intent to file.'' (AAR Comment 17.) According to
AAR, while the proposal requires a good faith effort to resolve the
dispute before filing, it does not require the petitioner to notify the
incumbent carrier of the emergency. (Id.) AAR asserts that this
modification would ensure the incumbent carrier has sufficient notice
to prepare a response to a petition and that the Board has the most
complete information. (Id.) Shipper Groups argue this concern is
unfounded. (Shipper Grps. Reply 8.) Additionally, Shipper Groups
express concern with the Board's proposal to limit petitions under 49
CFR 1146.2 to three substantive pages. According to Shipper Groups,
this page limit may lead to skeletal filings that could cause
uncertainty, confusion, and longer hearings. (Shipper Grps. Comment
10.) Shipper Groups suggest that a word count limitation would be less
subject to manipulation. (Id.)
The Board agrees with Shipper Groups regarding AAR's concerns here.
It is redundant to require petitions to state that petitioners have
notified incumbent carriers of emergencies and their intent to file for
emergency service given that shippers are required in good faith to
seek informal resolution of the matter before filing under 49 CFR
1146.2 and to describe those efforts in their petitions. The Board
expects that shippers facing such an emergency would make the impact of
the service issue on their business clear to the railroad during
informal discussions.
The Board declines to adopt Shipper Groups' suggestion that it
address concerns about the page limitation by using a word limit
instead. It is not clear from Shipper Groups' argument why such a
change would be meaningful, and doing so would depart from standard
Board practice. See, e.g., 49 CFR 1115.2(d), 1115.3(d), 1115.5(c).
Moreover, 49 CFR 1104.2 sets forth requirements such as page size, font
size, and line spacing, which will help prevent parties from
manipulating the limitations. The Board will, however, expand the
petition page limit from three substantive pages to five substantive
pages to accommodate the requirements that petitions include a
particularized description of the commodities and volumes subject to
the requested relief and the timing necessary for such relief,
including why relief under 1146.1 would be ineffective; as well as a
particularized description of how the measurable deterioration or other
demonstrated inadequacy, absent the requested relief, presents imminent
significant harm and threatens potentially severe consequences as
specified in 1146.2(a).
AAR expresses concern about the Board's proposal to rotate, on a
quarterly basis, the Board Member assigned to evaluate petitions for
emergency relief and issue the initial decision. AAR projects that a
single quarter may see a large number of complaints, which could tax a
single Board Member; AAR goes so far as to speculate that single-Member
decision making could even lead to ``judge shopping'' by shippers. (AAR
Comment 15-16.) AAR suggests that the Board ``shorten the rotation, not
make it public, and allow for at least two Members'' to resolve cases
or allow Board staff to hold a conference before making a
recommendation to the full Board, as is done for motions to compel.
(Id. at 16.) The Coalition Associations do not object to AAR's
proposals intended to mitigate the burdens that could fall unduly upon
a single Board Member; however, they object to AAR's statement that
petitioners would ``judge shop.'' (Coalition Ass'ns Reply 14.)
According to the Coalition Associations, ``any circumstance in which a
shipper can afford to wait until the following calendar quarter to have
its petition decided by a different Board Member would not qualify for
the [49 CFR] 1146.2 process.'' (Coalition Ass'ns Reply 14-15.) Shipper
Groups argue that AAR's concerns may never materialize, and if they do,
the Board can address them at that time. (Shipper Grps. Reply 7.) \28\
---------------------------------------------------------------------------

\28\ NS notes the NPRM did not propose to amend the Board
regulations at 49 CFR 1011.4 to delegate this authority to an
individual Board Member. (NS Comment 11 n.10.) Because the
regulations adopted in this final rule provide for a full Board
decision, this modification is unnecessary.
---------------------------------------------------------------------------

After considering the concerns raised in the comments, the Board
finds that the objectives of the new 49 CFR 1146.2 process would be
best achieved through a full Board decision rather than through
delegation to a single Board Member. The Board's emergency service
powers, when exercised, undoubtedly have a significant impact on
various parties and the interstate rail network as a whole.
Consideration by the full Board better lends itself to the exercise of
that power, even in the accelerated process. Moreover, consideration by
the full Board in the first instance (rather than upon appeal of a
single-Member decision) will allow the process to be more efficient
while still protecting the right to appeal by petitioning the Board for
reconsideration. Accordingly, the regulations adopted in this final
rule provide for a full Board decision on the merits of petitions
seeking relief under 49 CFR 1146.2. To accommodate this procedural
change but still allow proceedings to move quickly, instead of a
hearing before the designated single

[[Page 4575]]

Board Member as was proposed in the NPRM, Board staff will hold a
staff-led conference with parties, as suggested by AAR.\29\ (AAR
Comment 16.) Board Members may attend the staff-led conference.\30\ A
transcript or recording of the staff-led conference will be made
available to all Board Members before they make their decision and will
be posted in the docket following any necessary redactions for
confidentiality. In addition, given the change from a single Member to
full Board decision, the Board will endeavor to issue a decision on the
merits within three business days, rather than two as was proposed in
the NPRM. This process is intended to be quick and flexible while also
respecting the regulatory powers involved in the emergency service
process.\31\ Moreover, including a staff-led conference might encourage
discussion and resolution among parties to a proceeding.
---------------------------------------------------------------------------

\29\ Designated Board staff will not be recused from handling
substantive elements of the case.
\30\ The Board Members may do so ``without regard to subchapter
II of chapter 5 of title 5.'' 49 U.S.C. 11123(b)(1).
\31\ Shipper Groups assert that the possibility for consecutive
appeals--first, to the entire Board, followed by a petition for
reconsideration of the full Board decision--could dissuade
petitioners from utilizing the accelerated process because the 49
CFR 1146.1 process, which takes 10 business days, would appear to be
less burdensome. (Shipper Grps. Comment 10-11.) On reply, AAR argues
that the right to appeal is ``fundamental and already required by
the Board's own regulations'' and that ``prohibiting appeal from the
decision of a single Board [M]ember would be patently unfair and a
denial of due process.'' (AAR Reply 4.) Now that the entire Board
will decide on petitions under 49 CFR 1146.2, parties will no longer
need to appeal these decisions to the full Board before then
petitioning for reconsideration. However, petitions for
reconsideration will be permitted under a shortened timeline,
similar to the timeline provided for appeals in the NPRM, given the
nature of proceedings under the accelerated process. The Board will
amend 49 CFR 1115.3 accordingly.
---------------------------------------------------------------------------

NGFA asks the Board to require potential alternative carriers to
address at the hearing proposed by the Board in the NPRM ``whether the
remedy proposed by the petitioner is unsafe, infeasible, or will
substantially impair the replying carrier's ability to serve its other
customers adequately or fulfill its common carrier obligations,'' as
the proposed regulations required of incumbent carriers. (NGFA Comment
6-7.) Additionally, CSXT and NS argue that if the Board adopts the
accelerated process, it should modify the proposed treatment of
confidential information because closing portions of the proposed
hearing to certain parties is unnecessary and would be unfair,
prejudicial, and inconsistent with how the Board treats confidential
information in other proceedings (accessible subject to a protective
order). (CSXT Comment 13; NS Comment 11.)
Potential alternative carriers will be required to attend the staff
conference where that information can be discussed and will be required
to identify, at the conference, facts showing whether the proposed
alternative service would be infeasible, or substantially impair the
replying carrier's service to other customers. As for CSXT's and NS's
positions on modifying the treatment of confidential information, the
Board finds it is best to adopt this aspect of the regulation as
proposed in order to maintain flexibility. This flexibility is
imperative, for example, if a case involves multiple carriers and
requires discussion of highly confidential information. While the Board
will leave this aspect of the proposal unchanged, the Board emphasizes
that transparency will be pursued to the greatest extent possible.
Regarding the proposed limitations on relief available under the
new process, BLET argues the 20-day relief limit would provide a
``back-stop to causing most major harms.'' (BLET Comment 4-5.) CSXT
asks the Board to clarify in the regulations that orders under 49 CFR
1146.2 may not be extended beyond the 20-day period and that additional
relief would require a petition under 49 CFR 1146.1. (CSXT Comment 12.)
AAR and NS argue that relief under the proposed new accelerated process
should be limited to incumbent-based relief. (AAR Comment 10-11; see
also NS Comment 5.) Both carrier interests argue it would be
impractical for an alternative carrier to provide service for 20 days
and that, for safety reasons, crews from the alternative carrier must
be qualified to operate on the incumbent's tracks. (AAR Comment 10-11;
NS Comment 5-6.) AAR adds that if an incumbent crew is available to
train the crew of the alternative carrier, the incumbent crew could
simply be directed to provide the service itself. (AAR Comment 10-11.)
AAR asserts that limiting 49 CFR 1146.2 to incumbent-based relief would
provide more time to identify an alternative carrier for continued
relief under 49 CFR 1146.1. (AAR Comment 11.) \32\ The Coalition
Associations state they are amenable to limiting the relief under 49
CFR 1146.2 to ``incumbent-based relief'' only, which they understand to
include relief that does not involve the grant of trackage rights to an
alternative carrier but could include granting an alternative through
route using an alternative carrier. (Coalition Ass'ns Reply 7.)
---------------------------------------------------------------------------

\32\ AAR notes the proposed language for 49 CFR 1146.2 in the
NPRM did not include a requirement to provide even an identification
of an alternative carrier, although potential alternative carriers
would be required to attend the hearing. (AAR Comment 11 n.16.)
However, 49 CFR 1146.2(e) requires service on other parties, which,
as discussed below, includes any proposed alternative carriers.
Accordingly, the contact information for any potential alternative
carriers should be provided on the certificate of service.
---------------------------------------------------------------------------

The Board will adopt language clarifying that relief under 49 CFR
1146.2 may not be extended beyond the 20-day period and any additional
relief will require a separate petition under 49 CFR 1146.1. This will
provide a clearer pathway for any party wishing to seek additional
emergency relief. However, the Board will not limit 49 CFR 1146.2 to
provide for incumbent-based relief only. Section 1146.1 allows the
Board to provide for trackage rights to an alternative carrier with the
same safety and feasibility concerns present as those raised regarding
49 CFR 1146.2. Additionally, while the Board expects incumbent-based
relief to be utilized in the vast majority of instances, the Board
finds it important to maintain flexibility in its process since, for
example, there may be situations where arrangements between parties
could make trackage-rights relief more feasible. Nevertheless, the
Board emphasizes that feasibility will be considered in determining
what relief is appropriate in a given case and that it will not order a
remedy that it deems infeasible.
Several commenters asked the Board to clarify the proposed service
requirements. CSXT questions whether the Board is suggesting that all
pleadings must be e-filed with the Board, or whether it is proposing to
introduce electronic service of pleadings, which cannot be accomplished
through e-filing. (CSXT Comment 12.) AAR and NS each ask the Board to
clarify that e-filing alone is not considered sufficient service since
e-filing on the Board's website does not effectuate service on other
parties or the FRA. (AAR Comment 16; NS Comment 10.) NS states it
``supports the Board adding a method of electronic service and suggests
that the Board consider using language similar to that contained in 49
CFR 1104.12, which governs service of documents.'' (NS Comment 11.) The
Coalition Associations agree that the requested clarifications are
needed. (Coalition Ass'ns Reply 15.) They also ask the Board to
consider requiring all Class I carriers to file with the Board the name
and electronic address for service of petitions, which it states would
ensure faster delivery to those carriers and maximize their response
time. (Id.)
The Board agrees that the proposed service provisions were unclear
and will clarify them by revising the text to read

[[Page 4576]]

more like that in 49 CFR 1104.12. The Board should be served by e-
filing on the Board's website, given the short timeline of these
proceedings. Service on other parties, including any proposed
alternative carriers, and the FRA may be done by email, hand, or
overnight delivery. In addition, all pleadings should also be emailed
to <a href="/cdn-cgi/l/email-protection#6f3c0a1d19060c0a2a020a1d080a010c162f1c1b0d41080019"><span class="__cf_email__" data-cfemail="fba89e898d92989ebe969e899c9e959882bb888f99d59c948d">[email&#160;protected]</span></a>. However, the Board will not at this time
require the Class I carriers to file the name and electronic address
for service of petitions. The contact information for the serving
carrier is the type of information that should already be in the
possession of the petitioner. Moreover, parties are required to make a
good faith effort to resolve any service issues through an informal
dispute resolution process, during which time they can obtain this
information from the carrier, if needed.
BLET expresses concern that emergency service for acute service
emergencies might undermine collective bargaining agreements (CBAs).
(BLET Comment 5.) The Board does not anticipate that CBAs will be an
issue in most emergency service proceedings, but notes that any such
issues are best resolved on a case-by-case basis in any event.
Lastly, NMA cautions that the new process, if codified, should be
used sparingly because, although ``it is not the intent of the [Board]
to create a new program to regulate rail, this proposed rulemaking is a
slippery slope that has the potential to be abused by bad actors.''
(NMA Comment 3; see also AAR Reply 8-9 (noting that it shares the
concerns expressed by NMA).) While the accelerated process may impact
informal dispute resolution between the parties, the Board finds no
reason to assume potential abuse of the accelerated process itself. By
its own definition, 49 CFR 1146.2 will be used only sparingly because
it is much narrower than 49 CFR 1146.1, and the circumstances under
which it can be used are limited. Moreover, it is in the interest of
all parties to act in good faith, and the Board will deny petitions
filed in bad faith or that otherwise abuse the Board's processes.
Contract and Exempt Traffic. Various carrier interests also ask the
Board to clarify that traffic moving pursuant to a contract is not
eligible for relief under the Board's proposal. (AAR Comment 18-19,
CSXT Comment 12; NS Comment 7-10.) According to NS, the plain language
of 49 U.S.C. 10709(c)(1) makes clear that traffic moving pursuant to a
contract is outside the Board's jurisdiction, but the Board's final
rule adopting 49 CFR 1146.1 ``injected unnecessary ambiguity'' into the
issue. (NS Comment 7-10 (citing Expedited Relief, EP 628, slip op. at
10).) NS argues that even if a railroad stops service, if that service
is governed by a contract, ``any relief . . . is wholly outside the
Board's jurisdiction,'' and any remedies ``must be provided for in the
contract itself (e.g., a force majeure provision) and are enforceable
only in the courts and subject to applicable state law.'' (Id. at 9
(citing 49 U.S.C. 10709(c)(2)).) CSXT asks that the Board require all
petitions filed under part 1146 to include a verification that the
transportation for which relief is sought is not governed by a
contract. (CSXT Comment 12.) AAR also argues exempt traffic should be
ineligible for relief under part 1146 because the expedited timelines
would not provide sufficient time for the Board to complete the
analysis required by statute to revoke an exemption. (AAR Comment 19.)
AAR further argues that revocation of an exemption requires a decision
of the full Board, not an individual Board Member as contemplated by 49
CFR 1146.2. (AAR Comment 20.)
The Coalition Associations disagree, arguing the Board may exercise
its authority to order emergency service over traffic covered by a
contract. (Coalition Ass'ns Reply 3.) According to the Coalition
Associations, Congress would not have granted the Board the broad
emergency authority it did in 49 U.S.C. 11123 only to carve out in 49
U.S.C. 10709 the substantial volume of traffic covered by a contract,
nor would Congress have subordinated the public interest to a private
contract. (Coalition Ass'ns Reply 4.) The Coalition Associations
contend that ``[t]he transportation that occurs pursuant to an
emergency service order is not occurring under a contract,'' but rather
is ``alternate service pursuant to [49 U.S.C.] 11123,'' (Coalition
Ass'ns Reply 5), and they identify a prior instance where the Board
exercised its 49 U.S.C. 11123 authority over contract traffic,
(Coalition Ass'ns Reply 4 (citing Joint Pet. for Serv. Ord., SO 1518
(STB served Oct. 31, 1997), modified and extended (STB served Dec. 4,
1997), further modified and extended (STB served Feb. 17 and 25, 1998),
terminated with wind-down period (STB served July 31, 1998).)
NGFA also disagrees with the proposition that contract traffic is
not eligible for emergency service relief, pointing to the Board's
rejection of this very argument made by AAR in the 1998 final rule in
Docket No. EP 628, and asserting that the Board ``clearly established
that it has jurisdiction to issue an order under [49 U.S.C.] 11123 for
movements subject to a transportation contract if the facts and
circumstances require it.'' (NGFA Reply 1-2 (citing Expedited Relief,
EP 628, slip op. at 10.)) NGFA likewise urges the Board to decline NS's
request for the Board to clarify that its emergency service authority
does not apply to contract traffic, observing that the adoption of such
a ``blanket, overreaching prohibition'' would be bad public policy
because it would render the Board powerless to act when rail service
failures significantly harm businesses and the public merely because
the service is governed by a contract. (Id. at 3.) Rather, NGFA asks
the Board to reaffirm its decision that 49 U.S.C. 11123 grants the
Board authority ``to act in the public interest to avert rail service
emergencies, regardless of whether the service the railroad has failed
to provide is governed by a tariff or a contract, subject to the
restrictions set forth in [Expedited Relief, EP 628].'' (NGFA Reply 3.)
In a similar vein, NGFA disputes the claim that exempt traffic is
ineligible for emergency service, citing Expedited Relief, EP 628,
where the Board noted that this argument ``is clearly wrong'' because
the Board ``retain[s] full jurisdiction to deal with exempted
transportation, as [the Board] can revoke the exemption at any time, in
whole or in part, under [49 U.S.C.] 10502(d).'' (NGFA Reply 2 (quoting
Expedited Relief, EP 628, slip op. at 10).)
NITL and ISRI similarly dispute carrier arguments that the Board
lacks the power to exercise its emergency service authority over
contract and exempt traffic. With respect to contract traffic, NITL and
ISRI assert the carriers' arguments ``are factually and legally
incorrect and contrary to the intent of Congress.'' (NITL & ISRI Reply
3.) As for exempt traffic, NITL and ISRI request that the Board
partially revoke existing class exemptions so they will not apply to
requests for emergency service. (Id. at 8.) NITL and ISRI argue there
are ``substantial similarities'' between the Board's ``partial
revocation of the exemption for agricultural commodities and the
circumstances involving exempt traffic and emergency service orders,''
which would justify the Board partially revoking existing exemptions to
permit shippers of exempt commodities to access the Board's emergency
service regulations. (Id. at 3-8.)
Shipper Groups contend that the carriers have not presented any
basis for the Board to depart from its decision in Expedited Relief, EP
628, (Shipper Grps. Reply 4), and argue that this issue is outside the
scope of the proceeding

[[Page 4577]]

because it was not included in the NPRM, (id. at 5).
The NPRM did not make any new proposal regarding the application of
section 11123 to contract traffic. In Expedited Relief, EP 628, the
Board concluded that any advance rejection of all authority to address
situations where a contract exists in an emergency would be
inappropriate and declined to include any bright-line prohibition.
Expedited Relief, EP 628, slip op. at 10. In the NPRM, the Board made
no proposals changing the status of existing law on this issue and sees
no reason to revisit that position here.
As for exempt traffic, the Board reiterates that it has the
authority to revoke exemptions when appropriate. Petitioners may
request partial revocations in their filings at 49 CFR 1146.1 or the
new accelerated process at 49 CFR 1146.2 (which will not be decided by
a single Member, as the NPRM originally proposed, but by the full
Board). See supra at 23-24.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (Regulatory Flexibility
Act), 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 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. 5 U.S.C. 601-604. In its final rule, the agency must either
include a final regulatory flexibility analysis, 5 U.S.C. 604(a), or
certify that the proposed rule would not have a ``significant impact on
a substantial number of small entities,'' 5 U.S.C. 605(b).
Because the goal of the Regulatory Flexibility Act is to reduce the
cost to small entities of complying with federal regulations, the
Regulatory Flexibility Act 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).
In the NPRM, the Board certified under 5 U.S.C. 605(b) that the
proposed rule would not have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act.\33\ The Board explained that the proposed
changes were intended to improve the Board's directed service
procedures and would not mandate or circumscribe the conduct of small
entities. Rather, the Board said, the changes would be largely
procedural and would not have a significant economic impact on the
Class III rail carriers to which the Regulatory Flexibility Act
applies. Because affected shippers or railroads could seek the relief
under 49 CFR part 1146 to obtain temporary relief from serious,
localized service problems more quickly and effectively, the Board
certified under 5 U.S.C. 605(b) that the proposed rules, if
promulgated, would not have a significant economic impact on a
substantial number of small entities within the meaning of Regulatory
Flexibility Act.
---------------------------------------------------------------------------

\33\ For the purpose of Regulatory Flexibility Act analysis for
rail carriers subject to Board 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
Instructions 1-1. See Small Entity Size Standards Under the Regul.
Flexibility Act, EP 719 (STB served June 30, 2016). 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 1201.1-1; Indexing the Annual Operating Revenues
of R.Rs., EP 748 (STB served June 29, 2023).
---------------------------------------------------------------------------

The final rule adopted here revises the rules proposed in the NPRM;
however, the same basis for the Board's certification of the proposed
rule applies to the final rule. Thus, the Board again certifies under 5
U.S.C. 605(b) that this final rule will not have a significant economic
impact on a substantial number of small entities as defined by the
Regulatory Flexibility Act. A copy of this decision will be served upon
the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business
Administration, Washington, DC 20416.

Paperwork Reduction Act

In the NPRM, the Board sought comments 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 Appendix B, 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 in
Appendix A, 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 estimated in the NPRM that the proposed requirements will
have a total hourly burden of 2,710 hours. There were no proposed non-
hourly burdens associated with these collections. No comments were
received pertaining to the collections of this information under the
PRA. The new collections will be submitted to OMB for review as
required under the PRA, 44 U.S.C. 3507(d) and 5 CFR 1320.11.
Congressional Review Act. Pursuant to the Congressional Review Act,
5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has
designated this rule as a non-major rule, as defined by 5 U.S.C.
804(2).

List of Subjects

49 CFR Part 1011

Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).

49 CFR Part 1104

Administrative practice and procedure.

49 CFR Part 1115

Administrative practice and procedure.

49 CFR Part 1146

Railroads.

It is ordered:
1. The Board adopts the final rule as set forth in this decision.
Notice of the adopted rule will be published in the Federal Register.
2. This decision is effective February 23, 2024.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.

Decided: January 18, 2024.

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, parts 1011,
1104, 1115, and 1146 of the Code of Federal Regulations as follows:

[[Page 4578]]

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

0
1. The authority citation for part 1011 continues to read as follows:

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 1301, 1321,
11123, 11124, 11144, 14122, and 15722.

0
2. Add Sec. 1011.7(a)(2)(xx) to read as follows:

Sec. 1011.7 Delegations of authority by the Board to specific offices
of the Board.

(a) * * *
(2) * * *
(xx) To delegate to Board staff any necessary parties for purposes
of accelerated emergency service proceedings at Sec. 1146.2 of this
chapter.
* * * * *

PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-
PLEADINGS, GENERALLY

0
1. The authority citation for part 1104 continues to read as follows:

Authority: 5.U.S.C. 553 and 559; 18 U.S.C. 1621; and 49 U.S.C.
1321.

0
2. Revise Sec. 1104.7(b) to read as follows:

Sec. 1104.7 Computation and extension of time.

* * * * *
(b) Extensions. Any time period, except those provided by law or
specified in these rules respecting informal complaints seeking damage,
may be extended by the Board in its discretion, upon request and for
good cause. Requests for extensions must be served on all parties of
record at the same time and by the same means as service is made on the
Board. However, if service is made on the Board in person and personal
service on other parties is not feasible, service on other parties
should be made by first class or express mail. A request for an
extension must be filed not less than 10 days before the due date,
except that in cases seeking expedited relief for service emergencies
under part 1146 of this chapter, a request for an extension must be
made within 24 hours of service of the petition, reply, or other filing
or procedural order of the Board as applicable. Only the original of
the request and certificate of service need be filed with the Board. If
granted, the party making the request should promptly notify all
parties to the proceeding of the extension and so certify to the Board,
except that this notification is not required in rulemaking
proceedings.
* * * * *

PART 1115--APPELLATE PROCEDURES

0
1. The authority citation for part 1115 continues to read as follows:

Authority: 5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.

0
2. Revise Sec. 1115.3(e) to read as follows:

Sec. 1115.3 Board actions other than initial decisions.

* * * * *
(e) Petitions must be filed within 20 days after the service of the
action or within any further period (not to exceed 20 days) as the
Board may authorize. However, in cases under Final Offer Rate Review
and in cases seeking expedited relief for service emergencies under the
accelerated process at 49 CFR 1146.2, petitions must be filed within 5
days after the service of the action, and replies to petitions must be
filed within 10 days after the service of the action.
* * * * *

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 herein, the Board may act on its own
initiative or pursuant to a petition.
(b) Procedure for petition for relief--(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 (including a description of
the efforts taken to resolve the matter prior to filing of the
petition, verified by a person or persons with knowledge of the efforts
taken to resolve the matter), 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; and
(iv) A detailed explanation of the specific remedy that is being
sought.
(2) Reply. The incumbent carrier and any proposed alternative
carriers must file a reply to a petition under this paragraph within
three (3) business days of service of the petition. If applicable, any
reply must address whether the specific remedy proposed by the
petitioner would be unsafe or infeasible, or would substantially impair
the 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) Procedure for petition to terminate 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. Every document filed with the Board under this section
must include a certificate showing simultaneous service upon all
parties to

[[Page 4579]]

the proceeding, including any proposed alternative carriers and the
Federal Railroad Administration. Service on the parties must be by the
same method and class of service used in serving the Board, with
charges, if any, prepaid. One copy must be served on each party. If
service is made on the Board in person, and personal service on other
parties is not feasible, service must be made by overnight delivery. If
a document is filed with the Board through the e-filing process, a copy
of the e-filed document must be emailed to other parties if that means
of service is acceptable to those other parties. If email is not
acceptable to the receiving party, a paper copy of the document must be
personally served on the other parties. If neither email nor personal
service is feasible, service of a paper copy must be by overnight
delivery. When a party is represented by a practitioner or attorney,
service upon the practitioner is deemed to be service upon the party.
All pleadings under this section must also be emailed to
<a href="/cdn-cgi/l/email-protection#f4a79186829d9791b199918693919a978db4878096da939b82"><span class="__cf_email__" data-cfemail="07546275716e6462426a6275606269647e4774736529606871">[email&#160;protected]</span></a>.

0
3. Add Sec. 1146.2 to read as follows:

Sec. 1146.2 Accelerated process.

(a) Request for 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 under 49 U.S.C.
11123(a) 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, national defense, or food
security, or a high probability of business closures or immediate plant
shutdowns. The timing of potential harm and consequences must render
potential relief under Sec. 1146.1 ineffective. The relief requested
must be feasible and 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.
(b) Procedure for accelerated process--(1) Petition for relief. A
petitioner seeking accelerated relief must indicate in its petition
that it is seeking such relief pursuant to paragraph (a) of this
section and must demonstrate circumstances that meet the standard set
forth in that paragraph. The petition must include:
(i) A particularized description of the commodities and volumes
which would be subject to the requested relief and the timing necessary
for such relief, including why potential relief under Sec. 1146.1
would be ineffective;
(ii) A particularized explanation of how the measurable
deterioration or other demonstrated inadequacy, absent the requested
relief, presents imminent significant harm and threatens potentially
severe adverse consequences as specified in paragraph (a) of this
section;
(iii) A description of specific and particularized action that
could be performed by the incumbent carrier or an alternative carrier
and ordered by the Board to relieve the potential harm and adverse
consequences;
(iv) A summary description of the efforts taken to resolve the
matter prior to filing the petition, which must be verified by a person
or persons with knowledge of the efforts taken to resolve the matter;
and
(v) Contact information for the incumbent carrier.
(vi) The petition will be limited to five (5) substantive pages,
not including the cover page, verifications, or certificate of service.
(2) Staff conference. When the Board receives a petition seeking
accelerated relief under paragraph (a) of this section, the petition
will be evaluated on its merits by the Board.
(i) After the Board receives the petition for accelerated relief, a
telephonic or virtual conference, led by designated Board staff, 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.
Designated Board staff may continue to work on the case after the
conference.
(ii) Required parties for the conference include the petitioner(s),
the incumbent carrier, and any proposed potential alternative carriers
and other parties deemed necessary by the Board. Portions of the
conference may be closed to certain parties if confidential business
information needs to be discussed. The conference 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 or any alternative
carrier shall address at the conference whether the remedy proposed by
the petitioner is unsafe, infeasible, or will unreasonably impair the
carrier's ability to serve other customers. The Board 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 conference, an alternative service plan for the Board
to consider. Any alternative carrier may also submit, within 24 hours
of the completion of the conference, an alternative service plan for
the Board to consider. The Board may choose to receive such information
either via written submission or a second virtual or telephonic
conference, if practicable.
(3) Board decision. The Board will endeavor to issue an initial
decision on the merits of the petition requesting accelerated relief
within three (3) business days of the completion of the conference. The
Board shall not award relief under this section for more than 20 days,
and any relief ordered under this section shall not be extended beyond
the 20-day period. A party may petition the Board for subsequent relief
under Sec. 1146.1.
(c) Petition for reconsideration. After the Board issues an initial
decision on the merits of the petition requesting accelerated relief,
parties may petition the Board for reconsideration. The petition for
reconsideration will be subject to Sec. 1115.3 of this chapter. The
record is to include any filings by the parties in the proceeding and
the unredacted recording of the conference.
(d) Stay of relief. Notwithstanding Sec. 1115.3 of this chapter,
parties seeking a stay of the relief issued by the Board must
concurrently file a petition for reconsideration of the decision and a
petition to stay.
(e) Service. Every document filed with the Board under this section
must include a certificate showing simultaneous service upon all
parties to the proceeding, including any proposed alternative carriers
and the Federal Railroad Administration. One copy must be served on
each party. Service on the Board must be made through the e-filing
process, and a copy of the e-filed document must be emailed to other
parties if that means of service is acceptable to those other parties.
If email is not acceptable to the receiving party, a paper copy of the
document must be personally served on the other parties. If neither
email nor personal service is feasible, service of a paper copy must be
by overnight delivery. When a party is represented by a practitioner or
attorney, service upon the practitioner is deemed to be service upon
the party. All pleadings under this section must also be emailed to
<a href="/cdn-cgi/l/email-protection#bae9dfc8ccd3d9dfffd7dfc8dddfd4d9c3fac9ced894ddd5cc"><span class="__cf_email__" data-cfemail="bae9dfc8ccd3d9dfffd7dfc8dddfd4d9c3fac9ced894ddd5cc">[email&#160;protected]</span></a>.

[FR Doc. 2024-01365 Filed 1-23-24; 8:45 am]
BILLING CODE 4915-01-P

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