80 FR 77311 - Offers of Financial Assistance
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board Federal Register Volume 80, Issue 239 (December 14, 2015)
Surface Transportation Board
Federal Register Volume 80, Issue 239 (December 14, 2015)
| Page Range | 77311-77312 | |
| FR Document | 2015-31347 |
[Federal Register Volume 80, Number 239 (Monday, December 14, 2015)] [Proposed Rules] [Pages 77311-77312] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-31347] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Chapter X [Docket No. EP 729] Offers of Financial Assistance AGENCY: Surface Transportation Board, DOT. ACTION: Advance notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Surface Transportation Board seeks comment on whether and how it should update its rules pertaining to offers of financial assistance in order to improve that process and protect it against abuse. DATES: Comments are due by February 12, 2016. Reply comments are due by March 14, 2016. ADDRESSES: Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at ``www.stb.dot.gov'' at the ``E-FILING'' link. Any person submitting a filing in paper format should send an original and 10 paper copies of the filing (and also an electronic version) to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423- 0001. Copies of written comments and replies will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site. FOR FURTHER INFORMATION CONTACT: Jonathon Binet, (202) 245-0368. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] SUPPLEMENTARY INFORMATION: In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995) (ICCTA), Congress revised the process for filing offers of financial assistance (OFAs) for continued rail service, codified at 49 U.S.C. 10904. Under the OFA process, as further implemented in the Board's regulations at 49 CFR 1152.27, financially responsible parties may offer to temporarily subsidize continued rail service over a line on which a carrier seeks to abandon or discontinue service, or offer to purchase a line and provide continued rail service on a line that a carrier seeks to abandon. Upon request, the abandoning or discontinuing carrier must provide certain information required under 49 U.S.C. 10904(b) and 49 CFR 1152.27(a) to a party that is considering making an OFA. A party that decides to make an OFA (the offeror) must submit the OFA to the Board, including the information specified in 49 CFR 1152.27(c)(1)(ii). If the Board determines that the OFA is made by a financially responsible offeror, the abandonment or discontinuance authority is postponed to allow the parties to negotiate a sale or subsidy arrangement. 49 U.S.C. 10904(d)(2); 49 CFR 1152.27(e). If the parties cannot agree to the terms of a sale or subsidy, they may request that the Board set binding terms under 49 U.S.C. 10904(f)(1). After the Board has set the terms, the offeror can accept the terms or withdraw the OFA. When the operation of a line is subsidized to prevent abandonment or discontinuance of service, it may only be subsidized for up to one year, unless the parties mutually agree otherwise. 49 U.S.C. 10904(f)(4)(b). When a line is purchased pursuant to an OFA, the buyer must provide common carrier service over the line for a minimum of two years and may not resell the line for five years after the purchase. 49 U.S.C. 10904(f)(4)(A); 49 CFR 1152.27(i)(2). Since the changes to the OFA process in ICCTA were enacted, the Board's experiences have shown that there are areas where clarifications and revisions could enhance the OFA process and protect it against abuse. Therefore, the Board seeks public comments on whether and how to improve any aspect of the OFA process, including enhancing its transparency and ensuring that it is invoked only to further its statutory purpose of preserving lines for rail service. Although we invite public comment on ways to improve any aspect of the OFA process, we also specifically seek comments on the following possible changes to the Board's OFA regulations. Financial Responsibility The Board's regulations require that a potential offeror demonstrate that it is ``financially responsible,'' but those regulations do not fully define this concept or what facts or evidence a party must provide to demonstrate financial responsibility. The Board has made various rulings on this question in specific proceedings, but those rulings are not codified in our regulations, which has led to disputes in some proceedings. See, e.g., Consol. Rail Corp--Aban. Exemption--in Phila. Pa., AB 55 (Sub-No. 710X) et al., slip op. at 4 (STB served Oct. 26, 2012) (``[T]he Offerors assert that they were and are still unsure exactly what documents they were required to produce to be considered financially responsible. . .''). See also Ind. Sw. Ry.--Aban. Exemption--in Posey & Vanderburgh Ctys., Ind., AB 1065X, slip op. at 4-5 (STB served April 8, 2011) (detailing information required from an offeror to establish financial responsibility, in detail beyond that contained in 49 CFR 1152.27(c)(1)(ii)(B)). Accordingly, we ask parties to comment on how the Board should modify its regulations so that the definition of financial responsibility is more transparent and understandable. We also ask parties to comment on methods of ensuring that an offeror is in fact financially responsible, including the following:What documentation should a potential offeror be required to submit to show financial responsibility? Should the Board require that potential offerors file notices of intent to file an OFA in abandonment and [[Page 77312]] discontinuance proceedings by a date certain? Should the Board require potential offerors to make a financial responsibility showing before requiring carriers to provide financial information to those offerors? Should the definition of financial responsibility include the ability, based on the price reflected in an offer of financial assistance, to purchase and operate for at least two years a line being abandoned or to subsidize for one year service being abandoned or discontinued? Should the Board alter the process for carriers to provide required financial information to potential offerors, and if so, how? Should the Board require potential offerors to make an ``earnest money'' payment or escrow payment, or to obtain a bond? Key considerations include: Whether the payment or bond amount would be a fixed figure or established on a case by case basis; what method would be used in calculating or fixing the amount; when in the process an offeror would need to make a payment or obtain a bond; and whether (and under what circumstances) a waiver of such a requirement would be appropriate. Should the Board prohibit OFA filings by individuals or entities that have abused the Board's processes or engaged in other deceitful or abusive behavior before the Board, and if so, what standards should the Board establish in making a prohibition determination? Continuation of Rail Service The Board has also adjudicated cases in which there has been controversy as to whether a party seeking to subsidize or acquire a line through the OFA process is doing so based on a genuine interest in and ability to preserve the line for rail service. See, e.g., Consol. Rail Corp.--Aban. Exemption--in Hudson Cty., N.J., AB 167 (Sub-No. 1190X), slip op. at 5 (STB served May 17, 2010) (exempting line from OFA process despite OFA filing because offerors failed to show cause that there was a continued need for rail service outweighing other concerns); Roaring Fork R.R. Holding Auth.--Aban. Exemption--in Garfield, Eagle, & Pitkin Ctys., Colo., AB 547X (STB served May 21, 1999) (dismissing OFA because the record did not provide ``some assurance that shippers are likely to make use of the line if continued service is made available, and that there is sufficient traffic to enable the operator to fulfill its commitment to provide that service''). The Board's regulations do not currently address these situations; therefore, we ask parties for ideas on how the regulations could be modified to do so. In particular, we ask parties to comment on the following: Should the Board require that an offeror address whether there is a commercial need for rail service as demonstrated by support from shippers or receivers on the line or through other evidence of immediate and significant commercial need; whether there is community support for rail service; and whether rail service is operationally feasible? Should the Board establish criteria and deadlines for carriers that want to file requests for exemptions from the OFA process? Identity of the Offeror Another issue the Board has encountered in OFA proceedings is confusion over the identity of the potential offeror. See CSX Transp. Inc.--Aban. Exemption--in Allegany Cty., Md., AB 55 (Sub-No. 659X), slip op. at 1 n.2 (STB served April 24, 2008) (describing confusion over proper name and existence of entity that filed OFA in 2005 but may not have been a legal entity until 2007 or the correct legal entity to receive deed for rail line). In order to avoid such confusion in future proceedings, we ask the parties to comment on the following: Should the Board require multiple parties intending to submit a joint OFA to do so through a single legal entity, such as a corporation or partnership, to facilitate the financial responsibility determination and to clarify the party acquiring the common carrier obligation? Should the Board require an individual filing an OFA to provide his or her personal address? Should the Board require a private legal entity filing an OFA to provide the offeror's exact legal name, the state under whose laws it is organized, and the address of its principal place of business? Because this is an Advanced Notice of Proposed Rulemaking, the Board may not act on each item listed above, but we seek the public's comment on these ideas, including how they could best be implemented, if appropriate. Parties are encouraged to be specific in commenting on these possible changes and in presenting ideas for other possible changes to the OFA process. The requirements of section 603 of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, (RFA) do not apply to this action because, at this stage, it is an ANPRM and not a ``rule'' as defined in section 601 of the RFA. Under the RFA, however, the Board must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. ``Small entities'' include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. If adoption of any rule likely to result from this ANPRM could have a significant economic impact on a small entity within the meaning of the RFA, commenters should submit as part of their comments an explanation of how the business or organization falls within the definition of a small entity, and how and to what extent the commenter's business or organization could be affected. Following review of the comments received in response to this ANPRM, if the Board promulgates a notice of proposed rulemaking regarding this matter, it will conduct the requisite analysis under the RFA. It is ordered: 1. Initial comments are due by February 12, 2016. 2. Reply comments are due by March 14, 2016. 3. This decision is effective on its date of service. By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Miller. Kenyatta Clay, Clearance Clerk. [FR Doc. 2015-31347 Filed 12-11-15; 8:45 am] BILLING CODE 4915-01-P
![Federal Register / Vol. 80, No. 239 / Monday, December 14, 2015 / Proposed Rules 77311
■ 9. Amend § 10.520 by revising ADDRESSES: Comments and replies may 10904(f)(4)(b). When a line is purchased
paragraph (d) to read as follows: be submitted either via the Board’s e- pursuant to an OFA, the buyer must
filing format or in paper format. Any provide common carrier service over the
§ 10.520 Common audio attention signal.
person using e-filing should attach a line for a minimum of two years and
* * * * * document and otherwise comply with may not resell the line for five years
(d) The audio attention signal must be the instructions found on the Board’s after the purchase. 49 U.S.C.
restricted to use for Alert Messages Web site at ‘‘www.stb.dot.gov’’ at the 10904(f)(4)(A); 49 CFR 1152.27(i)(2).
under part 10, except as used for federal ‘‘E–FILING’’ link. Any person Since the changes to the OFA process
Public Service Announcements (PSAs) submitting a filing in paper format in ICCTA were enacted, the Board’s
designed to raise public awareness should send an original and 10 paper experiences have shown that there are
about emergency alerting, provided that copies of the filing (and also an areas where clarifications and revisions
the federal agency presents the PSA in electronic version) to: Surface could enhance the OFA process and
a non-misleading manner, including by Transportation Board, 395 E Street SW., protect it against abuse. Therefore, the
explicitly stating that the emergency Washington, DC 20423–0001. Copies of Board seeks public comments on
alerting attention signal is being used in written comments and replies will be whether and how to improve any aspect
the context of a PSA for the purpose of available for viewing and self-copying at of the OFA process, including
educating the viewing or listening the Board’s Public Docket Room, Room enhancing its transparency and ensuring
public about emergency alerting. 131, and will be posted to the Board’s that it is invoked only to further its
* * * * * Web site. statutory purpose of preserving lines for
FOR FURTHER INFORMATION CONTACT: rail service. Although we invite public
PART 11—EMERGENCY ALERT comment on ways to improve any
Jonathon Binet, (202) 245–0368.
SYSTEM aspect of the OFA process, we also
[Assistance for the hearing impaired is
■ 10. The authority citation for part 11 available through the Federal specifically seek comments on the
continues to read as follows: Information Relay Service (FIRS) at 1– following possible changes to the
Authority: 47 U.S.C. 151, 154 (i) and (o), 800–877–8339.] Board’s OFA regulations.
303(r), 544(g) and 606. SUPPLEMENTARY INFORMATION: In the ICC Financial Responsibility
■ 11. Revise § 11.45 to read as follows: Termination Act of 1995, Public Law
104–88, 109 Stat. 803 (1995) (ICCTA), The Board’s regulations require that a
§ 11.45 Prohibition of false or deceptive Congress revised the process for filing potential offeror demonstrate that it is
EAS transmissions. offers of financial assistance (OFAs) for ‘‘financially responsible,’’ but those
No person may transmit or cause to continued rail service, codified at 49 regulations do not fully define this
transmit the EAS codes or Attention U.S.C. 10904. Under the OFA process, concept or what facts or evidence a
Signal, or a recording or simulation as further implemented in the Board’s party must provide to demonstrate
thereof, in any circumstance other than regulations at 49 CFR 1152.27, financial responsibility. The Board has
in an actual National, State or Local financially responsible parties may offer made various rulings on this question in
Area emergency or authorized test of the to temporarily subsidize continued rail specific proceedings, but those rulings
EAS, or as specified in § 10.520(d). service over a line on which a carrier are not codified in our regulations,
seeks to abandon or discontinue service, which has led to disputes in some
Federal Communications Commission.
or offer to purchase a line and provide proceedings. See, e.g., Consol. Rail
Gloria J. Miles,
continued rail service on a line that a Corp—Aban. Exemption—in Phila. Pa.,
Federal Register Liaison Officer, Office of the AB 55 (Sub-No. 710X) et al., slip op. at
Secretary. carrier seeks to abandon.
Upon request, the abandoning or 4 (STB served Oct. 26, 2012) (‘‘[T]he
[FR Doc. 2015–31234 Filed 12–11–15; 8:45 am]
discontinuing carrier must provide Offerors assert that they were and are
BILLING CODE 6712–01–P still unsure exactly what documents
certain information required under 49
U.S.C. 10904(b) and 49 CFR 1152.27(a) they were required to produce to be
to a party that is considering making an considered financially responsible. . .’’).
DEPARTMENT OF TRANSPORTATION OFA. A party that decides to make an See also Ind. Sw. Ry.—Aban.
OFA (the offeror) must submit the OFA Exemption—in Posey & Vanderburgh
Surface Transportation Board Ctys., Ind., AB 1065X, slip op. at 4–5
to the Board, including the information
specified in 49 CFR 1152.27(c)(1)(ii). If (STB served April 8, 2011) (detailing
49 CFR Chapter X
the Board determines that the OFA is information required from an offeror to
[Docket No. EP 729] made by a financially responsible establish financial responsibility, in
offeror, the abandonment or detail beyond that contained in 49 CFR
Offers of Financial Assistance discontinuance authority is postponed 1152.27(c)(1)(ii)(B)). Accordingly, we
AGENCY: Surface Transportation Board, to allow the parties to negotiate a sale ask parties to comment on how the
DOT. or subsidy arrangement. 49 U.S.C. Board should modify its regulations so
ACTION:Advance notice of proposed 10904(d)(2); 49 CFR 1152.27(e). If the that the definition of financial
rulemaking. parties cannot agree to the terms of a responsibility is more transparent and
sale or subsidy, they may request that understandable. We also ask parties to
SUMMARY: The Surface Transportation the Board set binding terms under 49 comment on methods of ensuring that
an offeror is in fact financially
Lhorne on DSK5TPTVN1PROD with PROPOSALS
Board seeks comment on whether and U.S.C. 10904(f)(1). After the Board has
how it should update its rules set the terms, the offeror can accept the responsible, including the following:
pertaining to offers of financial terms or withdraw the OFA. When the • What documentation should a
assistance in order to improve that operation of a line is subsidized to potential offeror be required to submit
process and protect it against abuse. prevent abandonment or discontinuance to show financial responsibility?
DATES: Comments are due by February of service, it may only be subsidized for • Should the Board require that
12, 2016. Reply comments are due by up to one year, unless the parties potential offerors file notices of intent to
March 14, 2016. mutually agree otherwise. 49 U.S.C. file an OFA in abandonment and
VerDate Sep<11>2014 14:50 Dec 11, 2015 Jkt 238001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1](https://thefederalregister.org/doc/80_FR_77550/page/1.svg)
![77312 Federal Register / Vol. 80, No. 239 / Monday, December 14, 2015 / Proposed Rules
discontinuance proceedings by a date address these situations; therefore, we however, the Board must consider
certain? ask parties for ideas on how the whether a proposed rule would have a
• Should the Board require potential regulations could be modified to do so. significant economic impact on a
offerors to make a financial In particular, we ask parties to comment substantial number of small entities.
responsibility showing before requiring on the following: ‘‘Small entities’’ include small
carriers to provide financial information • Should the Board require that an businesses, not-for-profit organizations
to those offerors? offeror address whether there is a that are independently owned and
• Should the definition of financial commercial need for rail service as operated and are not dominant in their
responsibility include the ability, based demonstrated by support from shippers fields, and governmental jurisdictions
on the price reflected in an offer of or receivers on the line or through other with populations under 50,000. If
financial assistance, to purchase and evidence of immediate and significant adoption of any rule likely to result
operate for at least two years a line commercial need; whether there is from this ANPRM could have a
being abandoned or to subsidize for one community support for rail service; and significant economic impact on a small
year service being abandoned or whether rail service is operationally entity within the meaning of the RFA,
discontinued? feasible? commenters should submit as part of
• Should the Board alter the process • Should the Board establish criteria their comments an explanation of how
for carriers to provide required financial and deadlines for carriers that want to the business or organization falls within
information to potential offerors, and if file requests for exemptions from the the definition of a small entity, and how
so, how? OFA process? and to what extent the commenter’s
• Should the Board require potential
Identity of the Offeror business or organization could be
offerors to make an ‘‘earnest money’’
affected. Following review of the
payment or escrow payment, or to Another issue the Board has comments received in response to this
obtain a bond? Key considerations encountered in OFA proceedings is ANPRM, if the Board promulgates a
include: Whether the payment or bond confusion over the identity of the notice of proposed rulemaking regarding
amount would be a fixed figure or potential offeror. See CSX Transp. this matter, it will conduct the requisite
established on a case by case basis; what Inc.—Aban. Exemption—in Allegany analysis under the RFA.
method would be used in calculating or Cty., Md., AB 55 (Sub-No. 659X), slip It is ordered:
fixing the amount; when in the process op. at 1 n.2 (STB served April 24, 2008) 1. Initial comments are due by
an offeror would need to make a (describing confusion over proper name February 12, 2016.
payment or obtain a bond; and whether and existence of entity that filed OFA in 2. Reply comments are due by March
(and under what circumstances) a 2005 but may not have been a legal 14, 2016.
waiver of such a requirement would be entity until 2007 or the correct legal 3. This decision is effective on its date
appropriate. entity to receive deed for rail line). In of service.
• Should the Board prohibit OFA order to avoid such confusion in future
filings by individuals or entities that By the Board, Chairman Elliott, Vice
proceedings, we ask the parties to Chairman Begeman, and Commissioner
have abused the Board’s processes or comment on the following: Miller.
engaged in other deceitful or abusive • Should the Board require multiple Kenyatta Clay,
behavior before the Board, and if so, parties intending to submit a joint OFA
what standards should the Board Clearance Clerk.
to do so through a single legal entity,
establish in making a prohibition [FR Doc. 2015–31347 Filed 12–11–15; 8:45 am]
such as a corporation or partnership, to
determination? facilitate the financial responsibility BILLING CODE 4915–01–P
Continuation of Rail Service determination and to clarify the party
acquiring the common carrier
The Board has also adjudicated cases obligation? DEPARTMENT OF COMMERCE
in which there has been controversy as • Should the Board require an
to whether a party seeking to subsidize individual filing an OFA to provide his National Oceanic and Atmospheric
or acquire a line through the OFA or her personal address? Administration
process is doing so based on a genuine • Should the Board require a private
interest in and ability to preserve the legal entity filing an OFA to provide the 50 CFR Part 648
line for rail service. See, e.g., Consol. offeror’s exact legal name, the state [Docket No. 151204999–5999–01]
Rail Corp.—Aban. Exemption—in under whose laws it is organized, and
Hudson Cty., N.J., AB 167 (Sub-No. the address of its principal place of RIN 0648–BF45
1190X), slip op. at 5 (STB served May business?
17, 2010) (exempting line from OFA Because this is an Advanced Notice of Control Date for the Blueline Tilefish
process despite OFA filing because Proposed Rulemaking, the Board may Fishery in Waters North of the Virginia/
offerors failed to show cause that there not act on each item listed above, but North Carolina Border
was a continued need for rail service we seek the public’s comment on these AGENCY: National Marine Fisheries
outweighing other concerns); Roaring ideas, including how they could best be Service (NMFS), National Oceanic and
Fork R.R. Holding Auth.—Aban. implemented, if appropriate. Parties are Atmospheric Administration (NOAA),
Exemption—in Garfield, Eagle, & Pitkin encouraged to be specific in Commerce.
Ctys., Colo., AB 547X (STB served May commenting on these possible changes ACTION: Advance notice of proposed
Lhorne on DSK5TPTVN1PROD with PROPOSALS
21, 1999) (dismissing OFA because the and in presenting ideas for other rulemaking (ANPR); request for
record did not provide ‘‘some assurance possible changes to the OFA process. comments.
that shippers are likely to make use of The requirements of section 603 of the
the line if continued service is made Regulatory Flexibility Act of 1980, 5 SUMMARY: This document announces a
available, and that there is sufficient U.S.C. 601–612, (RFA) do not apply to control date that may limit or restrict
traffic to enable the operator to fulfill its this action because, at this stage, it is an access to the blueline tilefish fishery in
commitment to provide that service’’). ANPRM and not a ‘‘rule’’ as defined in Federal waters north of the Virginia/
The Board’s regulations do not currently section 601 of the RFA. Under the RFA, North Carolina border. This action is
VerDate Sep<11>2014 14:50 Dec 11, 2015 Jkt 238001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1](https://thefederalregister.org/doc/80_FR_77550/page/2.svg)
Document Created: 2015-12-14 13:47:18
Document Modified: 2015-12-14 13:47:18
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Advance notice of proposed rulemaking. | |
| Dates | Comments are due by February 12, 2016. Reply comments are due by March 14, 2016. | |
| Contact | Jonathon Binet, (202) 245-0368. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] | |
| FR Citation | 80 FR 77311 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR