80 FR 80737 - On-Time Performance Under Section 213 of the Passenger Rail Investment and Improvement Act of 2008
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board Federal Register Volume 80, Issue 248 (December 28, 2015)
Surface Transportation Board
Federal Register Volume 80, Issue 248 (December 28, 2015)
| Page Range | 80737-80741 | |
| FR Document | 2015-32411 |
[Federal Register Volume 80, Number 248 (Monday, December 28, 2015)] [Proposed Rules] [Pages 80737-80741] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-32411] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Part 1040 [Docket No. EP 726] On-Time Performance Under Section 213 of the Passenger Rail Investment and Improvement Act of 2008 AGENCY: Surface Transportation Board. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Surface Transportation Board (Board) is proposing a definition of ``on-time performance'' for purposes of Section 213 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA). DATES: Comments are due by February 8, 2016. Reply comments are due by February 29, 2016. ADDRESSES: Comments and replies may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e- filing should attach a document and otherwise comply with the instructions at the ``E-FILING'' link on the Board's Web site, at ``http://www.stb.dot.gov.'' Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 726, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments and replies will be posted to the Board's Web site and will be available for viewing and self-copying at the Board's Public Docket Room, Room 131. Copies will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245-0238 or 395 E Street SW., Washington, DC 20423-0001. FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman at (202) 245-0386. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. SUPPLEMENTARY INFORMATION: By decision served on May 15, 2015, the [[Page 80738]] Board instituted a rulemaking proceeding to define ``on-time performance'' for purposes of Section 213 of PRIIA, 49 U.S.C. 24308(f). The Board instituted this proceeding in response to a petition for rulemaking filed by the Association of American Railroads (AAR). Any rule promulgated in this proceeding would apply to complaints under 24308(f) currently pending before the Board, as well as future complaints or investigations under that section.\1\ --------------------------------------------------------------------------- \1\ AAR requested a rulemaking only if the Board did not grant Canadian National Railway's (CN's) petition for reconsideration in Docket No. NOR 42134 and the motions to dismiss in Docket No. NOR 42141--the two complaint cases under 24308(f) now pending before the Board. While the Board has not ruled on those pleadings, the Board decided to institute a rulemaking proceeding and invite public participation because AAR's petition raised a number of important issues. --------------------------------------------------------------------------- Background. The National Railroad Passenger Corporation (Amtrak) was established by Congress in 1970 to preserve passenger services and routes on the Nation's railroads. See Lebron v. Nat'l R.R. Passenger Corp., 513 U. S. 374, 383-384 (1995); Nat'l R.R. Passenger Corp. v. Atchison, Topeka, & Santa Fe R.R., 470 U. S. 451, 454 (1985); see also Rail Passenger Serv. Act of 1970, Public Law 91-518, 84 Stat. 1328 (1970). As a condition of relieving the freight railroads of their common carrier obligation to provide passenger service, Congress required that the freight railroads permit Amtrak to operate over their tracks and use their facilities. See 45 U.S.C. 561, 562 (1970 ed.). Since 1973, Congress has required freight railroads to give Amtrak trains preference over freight trains when using the lines and facilities of freight railroads: ``Except in an emergency, intercity and commuter rail passenger transportation provided by or for Amtrak has preference over freight transportation in using a rail line, junction, or crossing. . . .'' 49 U.S.C. 24308(c); see Amtrak Improvement Act of 1973, Public Law 93-146, 10(2), 87 Stat. 552 (initial version). In 2008, Congress enacted PRIIA to address, among other things, issues related to the performance of passenger rail service, including the concern that one cause of Amtrak's inability to achieve reliable on-time performance was the failure of host freight railroads to honor Amtrak's right to preference. See Passenger Rail Inv. & Improvement Act, Public Law 110-432, Div. B, 122 Stat. 4907 (2008); S. Rep. No. 67, 110th Cong., 1st Sess. 25-26 (2007). Section 207 of PRIIA charged Amtrak and the Federal Railroad Administration (FRA) with ``jointly'' developing new, or improving existing, metrics and standards for measuring the performance of intercity passenger rail operations, including on-time performance and train delays incurred on host railroads. Under Section 213(a) of PRIIA, if the on-time performance of any intercity passenger train averages less than 80% for any two consecutive calendar quarters, the Board may initiate an investigation, or Amtrak and other eligible complainants may file a complaint with the Board requesting that the Board initiate an investigation. The purpose of such an investigation is to determine whether and to what extent delays are due to causes that could reasonably be addressed by the passenger rail operator or the host railroad. Following the investigation, should the Board determine that Amtrak's substandard performance is ``attributable to'' the rail carrier's ``failure to provide preference to Amtrak over freight transportation as required'' by 49 U.S.C. 24308(c), the Board may choose to ``award damages'' or other appropriate relief from a host railroad to Amtrak. 49 U.S.C. 24308(f[hairsp])(2). If the Board finds it appropriate to award damages to Amtrak, Amtrak must use the award ``for capital or operating expenditures on the routes over which delays'' were the result of the host railroad's failure to grant the statutorily required preference to passenger transportation. 49 U.S.C. 24308(f[hairsp])(4). On August 19, 2011, AAR filed a lawsuit in the United States District Court for the District of Columbia challenging the constitutionality of Section 207 of PRIIA. See Ass'n of Am. R.Rs. v. Dep't of Transp., 865 F. Supp. 2d 22 (D.D.C. 2012). On January 19, 2012, prior to the issuance of a decision in that case, Amtrak filed a complaint with the Board pursuant to Section 213 of PRIIA in Docket No. NOR 42134, requesting that the Board initiate an investigation into alleged ``substandard performance of Amtrak passenger trains'' on certain rail lines owned by CN.\2\ Amtrak's complaint was subsequently held in abeyance for the purposes of mediation; the mediation period expired on October 4, 2012. Later, the Board granted the parties' request that the case again be held in abeyance to permit them to continue discussions and potentially reach a settlement. This abeyance was extended several times; most recently, on August 19, 2013, the Board extended the abeyance period to July 31, 2014, which the parties argued was warranted by their ongoing discussions and to provide additional time that may be necessary for final resolution of the lawsuit challenging the constitutionality of Section 207(a) of PRIIA. Ultimately, however, the mediation and discussions were unsuccessful. --------------------------------------------------------------------------- \2\ Amtrak Complaint, NOR 42134, at 2 (Jan. 19, 2012). --------------------------------------------------------------------------- Meanwhile, on May 31, 2012, the District Court upheld the constitutionality of Section 207. Ass'n of Am. R.Rs. v. Dep't of Transp., 865 F. Supp. 2d at 25. AAR then appealed to the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit). The D.C. Circuit reversed the District Court, holding that Section 207 of PRIIA impermissibly delegates regulatory authority to a ``private entity'' (Amtrak) and, therefore, is an unconstitutional delegation of legislative power. Ass'n of Am. R.Rs. v. Dep't of Transp., 721 F.3d 666 (D.C. Cir. 2013). The D.C. Circuit's decision was then appealed to the United States Supreme Court, which agreed to review the case. While review was pending before the Supreme Court, on August 29, 2014, Amtrak filed a motion to amend its complaint against CN in Docket No. 42134 (the ``Illini/Saluki'' case). Specifically, Amtrak sought to narrow the focus of the complaint to the performance of Amtrak's Illini/Saluki service rather than all of the Amtrak services on lines owned by CN addressed in the original complaint. In addition, on November 17, 2014, Amtrak filed a new complaint under Section 213 of PRIIA in Docket No. NOR 42141, alleging ``substandard performance of Amtrak's Capitol Limited service between Chicago, IL and Washington, D.C.'' on rail lines owned by CSX Transportation, Inc. and Norfolk Southern Railway Company (the ``Capitol Limited'' case).\3\ --------------------------------------------------------------------------- \3\ Amtrak Complaint, NOR 42141, at 2 (Nov. 17, 2014). --------------------------------------------------------------------------- On December 19, 2014, while the Supreme Court case was still pending, the Board issued a decision in the Illini/Saluki case (December 2014 Decision) (1) granting Amtrak's motion to amend its complaint against CN, and (2) concluding that the pending court litigation involving the constitutionality of Section 207 did not preclude Amtrak's complaint before the Board from moving forward. The Board also directed the parties to provide arguments and replies addressing how to construe the term ``on-time performance'' as the term is used in Section 213. In dissent, Commissioner Begeman stated that the Board would best fulfill its obligations under the law by initiating a rulemaking to establish clear standards by which on-time [[Page 80739]] performance cases could be fairly processed. CN filed a petition for reconsideration in the Illini/Saluki case on January 7, 2015. AAR also submitted a conditional petition for rulemaking in this docket on January 15, 2015. In response, the Board, on January 16, 2015, served a decision postponing the filing deadlines in the Illini/Saluki case established by the December 2014 Decision, pending further order of the Board. In the Capitol Limited case, the Board served a decision on April 7, 2015, directing the parties to engage in mediation. The mediation period concluded on August 14, 2015, without success. On March 9, 2015, the Supreme Court reversed the D.C. Circuit's decision, finding that Amtrak is a governmental entity for purposes of analyzing the constitutional issues surrounding the delegation of authority in Section 207. Dep't of Transp. v. Ass'n of Am. R.Rs., 135 S. Ct. 1225 (2015). However, the Court remanded the case to the D.C. Circuit for consideration of AAR's other arguments regarding the constitutionality of Section 207, which the D.C. Circuit had declined to reach. Id. at 1234. Currently, the legality of Section 207 of PRIIA remains in dispute. As noted, on May 15, 2015, the Board instituted this rulemaking proceeding in response to a petition filed by AAR. In that decision, the Board stated that it intended to issue a notice of proposed rulemaking and a procedural schedule in a subsequent decision. The Board found persuasive the arguments regarding the advantages of rulemaking in this situation: There are multiple on-time performance cases pending in which the Board's definition could apply; it would be efficient to obtain the full range of stakeholder perspectives in one docket, rather than piecemeal on a case-by-case basis; and defining on- time performance by rulemaking would provide clarity regarding the trigger for potential adjudications and would avoid the potential relitigation of the issue in each case, thereby conserving party and agency resources. The Proposed Rule. The proposed rule's definition of on-time performance, which is derived from a previous definition of on-time performance used by the Interstate Commerce Commission (ICC), reads as follows: a train is deemed to be ``on time'' if it arrives at its final destination within five minutes of its scheduled arrival time per one hundred miles of operation (capped at 30 minutes). The ICC's on-time performance regulations (former 49 CFR 1124.6) provided that an intercity passenger train ``shall arrive at its final terminus no later than 5 minutes after scheduled arrival time per 100 miles of operation, or 30 minutes after scheduled arrival time, whichever is the less.'' The ICC explained that ``[t]he public should be able to rely on the established train schedule so that plans can be made with a modicum of certainty and trains may once again be attractive to travelers for whom on-time performance is imperative.'' Adequacy of Intercity Rail Passenger Serv., 344 I.C.C. 758, 776 (1973).\4\ We believe that the ICC's prior sentiment is equally valid today. --------------------------------------------------------------------------- \4\ Subsequently, in the Amtrak Reorganization Act of 1979, Pub. L. 96-73, 96 Stat. 537, Congress repealed the ICC's adequacy-of- service jurisdiction over Amtrak while establishing an internal Amtrak organization with similar functions. This transfer of responsibilities, however, implied no Congressional judgment on the merits of the ICC's definition of on-time performance. --------------------------------------------------------------------------- Under Section 1040.2 of the proposed rule, Definition of ``On Time,'' a train would be considered ``on time'' if it arrives at its final terminus no more than five minutes after its scheduled arrival time for each 100 miles the train operated, or 30 minutes after its scheduled arrival time, whichever is less. Section 1040.3 of the proposed rule, Table of Maximum Allowances, sets forth the following table specifying the maximum number of minutes after a scheduled arrival time that an ``on-time'' train may arrive at its final terminus for each distance-variable band. ------------------------------------------------------------------------ Distance operated (miles) --------------------------------------------------------- Maximum Up to and allowance Over including (minutes) ------------------------------------------------------------------------ 0....................................... 100 5 100..................................... 200 10 200..................................... 300 15 300..................................... 400 20 400..................................... 500 25 500..................................... No limit 30 ------------------------------------------------------------------------ As set forth in the table, a train operating up to 100 miles would be ``on time'' if it arrives at its final terminus no more than five minutes after its scheduled arrival time. Likewise, a train operating over 100 miles but no more than 200 miles would be considered ``on time'' if it arrives at its final terminus no more than 10 minutes after its scheduled arrival time, and a train operating a distance over 500 miles would be considered ``on time'' if it arrives at its final terminus no more than 30 minutes after its scheduled arrival time. The proposed rule also provides a framework for calculating quarterly on-time performance for purposes of filing or initiating a complaint. As proposed in Section 1040.4, Calculation of Quarterly On- Time Performance, on-time performance would be calculated as a percentage for each individual calendar quarter (e.g., January 1 through March 31, April 1 through June 30, and so on) by dividing the total number of ``on-time'' trains that calendar quarter, as determined by distance-variable thresholds in Sections 1040.2 and 1040.3, by the total number of trains that operated during that calendar quarter. Trains that did not operate from scheduled origin to scheduled destination would be excluded from this calculation.\5\ If the on-time performance percentage, calculated as described above, falls below 80% in each calendar quarter for two consecutive calendar quarters, an eligible complainant could file a complaint requesting an investigation pursuant to Section 213(a) of PRIIA, or the Board could initiate an investigation on its own. --------------------------------------------------------------------------- \5\ Thus, excluded from the calculation would be, for example, trains that do not operate, for any reason; trains that terminate prematurely at an intermediate point rather than the scheduled final terminus; and trains that originate at an intermediate point rather than the scheduled origin. --------------------------------------------------------------------------- The Board proposes to adopt the ICC's definition because relying on a comparison between Amtrak's scheduled arrival time and the time an Amtrak train actually arrives at its final destination would be clear and relatively easy to apply. In particular, adoption of this definition would simplify the record-keeping and production of evidence that may otherwise be necessary for Amtrak and the host carriers if on- time performance were defined using a number of additional factors, such as the amount of delay at intermediate stops or construction on the host carrier's line. The Board seeks comments from all interested persons on the proposed rule. Importantly, the Board encourages interested persons to propose and discuss potential modifications or alternatives to the proposed rule. Examples of such alternatives might include, but are not limited to: Factoring into the calculation of on-time performance a train's punctuality at intermediate stops, rather than the final terminus only; implementing alternative tables of maximum allowances with respect to either the distance-variables or the maximum allowance of minutes for each distance-variable band; or calculating the ``on- time'' thresholds under an entirely different methodology, such as approaches that Amtrak or other public agencies and host carriers have implemented. The [[Page 80740]] Board will carefully consider all recommended proposals, and may take further comment, if appropriate, in an effort to establish the most meaningful and straightforward definition of on-time performance. Procedural Schedule. On June 12, 2015, Amtrak requested that the Board limit the comment period in this proceeding to 30 days. AAR filed a request for procedural schedule on July 16, 2015, in which it requested that the Board schedule two rounds of pleadings (opening comments and replies) before issuing a proposed rule and allow 45 days for parties to submit each (essentially, an Advanced Notice of Proposed Rulemaking). The Board will allow six weeks for parties to file opening comments in response to this notice of proposed rulemaking and three weeks for parties to file reply comments. Given the significance of the issue at hand, the Board finds that the 30-day comment period requested by Amtrak would provide insufficient time for parties to provide comments on the proposed rule. A procedural schedule allowing reply comments is appropriate because the Board here invites comments on not only the proposed rule, but potential modifications or alternatives (on which the Board may take further comment if appropriate). This approach is intended to balance the need to provide sufficient opportunity for public comments, as urged in part by AAR, with the need to complete this proceeding as expeditiously as possible. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on 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. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 603(a), or certify that the proposed rule would not have a ``significant impact on a substantial number of small entities.'' 605(b). The impact must be a direct impact on small entities ``whose conduct is circumscribed or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009). The proposed regulation would not create a significant impact on a substantial number of small entities. As noted above, host carriers have been required to allow Amtrak to operate over their rail lines since the 1970s. Moreover, an investigation concerning delays to intercity passenger traffic is a function of Section 213 of PRIIA rather than this rulemaking. The proposed rule seeks only to define ``on-time performance'' for the purpose of implementing the rights and obligations already established in Section 213 of PRIIA. Thus, the proposed rule does not place any additional burden on small entities, but rather clarifies an existing obligation. Even assuming for the sake of argument that the proposed regulation were to create an impact on small entities, which it does not, the number of small entities so affected would not be substantial. The proposed definition of on-time performance would apply in proceedings involving Amtrak, currently the only provider of intercity passenger rail transportation subject to PRIIA, and its host railroads. For almost all of its operations, Amtrak's host carriers are Class I rail carriers,\6\ and Class I carriers generally do not fall within the Small Business Administration's definition of a small business for the rail transportation industry.\7\ Of a total of approximately 560 smaller carriers that do fall within the SBA's definition of a small entity, only approximately 10 currently host Amtrak traffic.\8\ Therefore, the Board certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. 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. --------------------------------------------------------------------------- \6\ Under the Board's regulations, Class I carriers have annual carrier operating revenues of $250 million or more in 1991 dollars (adjusted for inflation using 2014 data, the revenue threshold for a Class I rail carrier is $475,754,803). \7\ The Small Business Administration's Office of Size Standards has established a size standard for rail transportation, pursuant to which a line-haul railroad is considered small if its number of employees is 1,500 or less, and a short line railroad is considered small if its number of employees is 500 or less. 13 CFR 121.201 (industry subsector 482). \8\ This number is derived from Amtrak's Monthly Performance Report for May 2015, historical on-time performance records, and system timetable, all of which are available on Amtrak's Web site. --------------------------------------------------------------------------- This proposal would not significantly affect either the quality of the human environment or the conservation of energy resources. List of Subjects in 49 CFR Part 1040 On-time performance of intercity passenger rail service. It is ordered: 1. Comments are due by February 8, 2016. Reply comments are due by February 29, 2016. 2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration. 3. Notice of this decision will be published in the Federal Register. 4. This decision is effective on its service date. Decided: December 16, 2015. By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Miller. Brendetta S. Jones, Clearance Clerk. For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, subchapter A, of the Code of Federal Regulations by adding part 1040 as follows: PART 1040--ON-TIME PERFORMANCE OF INTERCITY PASSENGER RAIL SERVICE Sec. 1040.1 Purpose. 1040.2 Definition of ``on time.'' 1040.3 Table of maximum allowances. 1040.4 Calculation of quarterly on-time performance. Authority: 49 U.S.C. 721 and 24308(f). Sec. 1040.1 Purpose. This section defines ``on-time performance'' for the purpose of implementing Section 213 of the Passenger Rail Investment and Improvement Act of 2008, 49 U.S.C. 24308(f). Sec. 1040.2 Definition of ``on time.'' A train is ``on time'' if it arrives at its final terminus no more than five minutes after its scheduled arrival time per 100 miles of operation, or 30 minutes after its scheduled arrival time, whichever is less. This definition shall be implemented in accordance with the table provided in Sec. 1040.3. Sec. 1040.3 Table of maximum allowances. The following table sets forth the maximum number of minutes after the scheduled arrival time that a train may arrive at its final terminus and be considered on time for the purpose of implementing 49 U.S.C. 24308(f). ------------------------------------------------------------------------ Distance operated (miles) --------------------------------------------------------- Maximum Up to and allowance Over including (minutes) ------------------------------------------------------------------------ 0....................................... 100 5 100..................................... 200 10 [[Page 80741]] 200..................................... 300 15 300..................................... 400 20 400..................................... 500 25 500..................................... No limit 30 ------------------------------------------------------------------------ Sec. 1040.4 Calculation of quarterly on-time performance. In any given calendar quarter, on-time performance shall be calculated as a percentage using the following formula: (a) The denominator shall be the number of trains that operated during that calendar quarter, excluding any train not operating from its scheduled origin to its scheduled destination; and (b) The numerator shall be the number of trains included in the denominator that also satisfy the definition of ``on-time performance,'' as set forth in Sec. Sec. 1040.2 and 1040.3. [FR Doc. 2015-32411 Filed 12-24-15; 8:45 am] BILLING CODE 4915-01-P
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method described in paragraph 4.3.2.1 accordance with 5 U.S.C. 552(a) and 1 (e) For terminal equipment that is
of ANSI/EIA/TIA–579–1991. No CFR part 51. Copies of these directly connected to the public
variation in loop conditions is required publications may be purchased from the switched telephone network:
for this measurement since the receive American National Standards Institute * * * * *
level of a digital telephone is (ANSI), Sales Department, 11 West 42nd (g) For ACS telephonic CPE subject to
independent of loop length. Street, 13th Floor, New York, NY 10036, a Supplier’s Declaration of Conformity,
(f) The ROLR for either an analog or (212) 642–4900, or http:// the responsible party shall make a copy
digital telephone shall first be global.ihs.com/. Copies also may be of the Supplier’s Declaration of
determined with the receive volume inspected during normal business hours Conformity freely available to the
control at its normal unamplified level. at the following locations: Consumer general public on its company Web site.
The minimum volume control setting and Governmental Affairs Bureau, [FR Doc. 2015–31368 Filed 12–24–15; 8:45 am]
shall be used for this measurement Reference Information Center, Federal BILLING CODE 6712–01–P
unless the manufacturer identifies a Communications Commission, 445 12th
different setting for the nominal volume Street SW., Washington, DC 20554; and
level. The ROLR shall then be the National Archives and Records
determined with the receive volume DEPARTMENT OF TRANSPORTATION
Administration (NARA). For
control at its maximum volume setting. information on the availability of this Surface Transportation Board
Since ROLR is a loudness rating value material at NARA, call 202–741–6030,
expressed in dB of loss, more positive or go to: http://www.archives.gov/ 49 CFR Part 1040
values of ROLR represent lower receive federal_register/code_of_federal_
levels. Therefore, the ROLR value regulations/ibr_locations.html. These [Docket No. EP 726]
determined for the maximum volume standards may also be viewed on the
control setting should be subtracted On-Time Performance Under Section
‘‘ANSI Incorporated by Reference (IBR)
from that determined for the nominal 213 of the Passenger Rail Investment
Portal’’ at http://ibr.ansi.org/.
volume control setting to determine and Improvement Act of 2008
(k) Manufacturers and other
compliance with the gain requirement. responsible parties of telephones subject AGENCY: Surface Transportation Board.
(g) The 18 dB of receive gain may be to this rule shall engage in consultation ACTION: Notice of proposed rulemaking.
exceeded provided that the amplified with people with hearing loss and their
receive capability automatically resets representative organizations for the SUMMARY: The Surface Transportation
to nominal gain when the telephone is purpose of assessing the effectiveness of Board (Board) is proposing a definition
caused to pass through a proper on-hook the standard adopted pursuant to of ‘‘on-time performance’’ for purposes
transition in order to minimize the paragraph (j) of this section. Such of Section 213 of the Passenger Rail
likelihood of damage to individuals consultation shall include testing a Investment and Improvement Act of
with normal hearing. sample of products certified to be 2008 (PRIIA).
(h) A telephone complies with the DATES: Comments are due by February
compliant with the revised standard to
Commission’s volume control 8, 2016. Reply comments are due by
evaluate whether products compliant
requirements if it is equipped with a
with such standard are providing a February 29, 2016.
receive volume control that provides,
uniform and appropriate range of ADDRESSES: Comments and replies may
through the receiver in the handset or
volume to meet the telephone needs of be submitted either via the Board’s e-
headset of the telephone, 18 dB of
Conversational Gain minimum and up consumers. Such consultation and filing format or in the traditional paper
to 24 dB of Conversational Gain testing shall occur by [ONE YEAR format. Any person using e-filing should
maximum when measured as described AFTER THE EFFECTIVE DATE OF THE attach a document and otherwise
in ANSI/TIA–4965–2012 FINAL RULE], pursuant to paragraph (j) comply with the instructions at the ‘‘E–
(Telecommunications—Telephone of this section, with follow-up every FILING’’ link on the Board’s Web site,
Terminal Equipment—Receive Volume three years thereafter to assess the at ‘‘http://www.stb.dot.gov.’’ Any person
Control Requirements for Digital and impact of these technological changes. submitting a filing in the traditional
■ 14. Amend § 68.320 by revising paper format should send an original
Analog Wireline Telephones). The 18
paragraph (e) to read as follows: and 10 copies to: Surface Transportation
dB of Conversational Gain minimum
must be achieved without significant Board, Attn: Docket No. EP 726, 395 E
§ 68.320 Supplier’s Declaration of
clipping of the speech signal used for Conformity. Street SW., Washington, DC 20423–
testing. 0001.
* * * * * Copies of written comments and
(i) The 24 dB of Conversational Gain (e) No person shall use or make
maximum may be exceeded provided replies will be posted to the Board’s
reference to a Supplier’s Declaration of Web site and will be available for
the amplified receive capability Conformity in a deceptive or misleading
automatically resets to a level less than viewing and self-copying at the Board’s
manner or to convey the impression that Public Docket Room, Room 131. Copies
18 dB of Conversational Gain when the such a Supplier’s Declaration of
telephone is caused to pass through a will also be available (for a fee) by
Conformity reflects more than a contacting the Board’s Chief Records
proper on-hook transition in order to determination by the responsible party
minimize the likelihood of damage to Officer at (202) 245–0238 or 395 E Street
that the device or product has been SW., Washington, DC 20423–0001.
individuals with normal hearing.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
shown to be capable of complying with
(j) These incorporations by reference FOR FURTHER INFORMATION CONTACT:
the applicable technical.
of paragraph 4.1.2 (including table 4.4) ■ 15. Amend § 68.324 by adding
Scott M. Zimmerman at (202) 245–0386.
of American National Standards paragraphs (e) introductory text and (g) Assistance for the hearing impaired is
Institute (ANSI) Standard ANSI/EIA– to read as follows: available through the Federal
470–A–1987, paragraph 4.3.2 of ANSI/ Information Relay Service (FIRS) at
EIA/TIA–579–1991, and ANSI/TIA– § 68.324 Supplier’s Declaration of (800) 877–8339.
4965–2012 were approved by the Conformity requirements. SUPPLEMENTARY INFORMATION: By
Director of the Federal Register in * * * * * decision served on May 15, 2015, the
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performance cases could be fairly provided that an intercity passenger time performance for purposes of filing
processed. train ‘‘shall arrive at its final terminus or initiating a complaint. As proposed
CN filed a petition for reconsideration no later than 5 minutes after scheduled in Section 1040.4, Calculation of
in the Illini/Saluki case on January 7, arrival time per 100 miles of operation, Quarterly On-Time Performance, on-
2015. AAR also submitted a conditional or 30 minutes after scheduled arrival time performance would be calculated
petition for rulemaking in this docket on time, whichever is the less.’’ The ICC as a percentage for each individual
January 15, 2015. In response, the explained that ‘‘[t]he public should be calendar quarter (e.g., January 1 through
Board, on January 16, 2015, served a able to rely on the established train March 31, April 1 through June 30, and
decision postponing the filing deadlines schedule so that plans can be made with so on) by dividing the total number of
in the Illini/Saluki case established by a modicum of certainty and trains may ‘‘on-time’’ trains that calendar quarter,
the December 2014 Decision, pending once again be attractive to travelers for as determined by distance-variable
further order of the Board. In the Capitol whom on-time performance is thresholds in Sections 1040.2 and
Limited case, the Board served a imperative.’’ Adequacy of Intercity Rail 1040.3, by the total number of trains
decision on April 7, 2015, directing the Passenger Serv., 344 I.C.C. 758, 776 that operated during that calendar
parties to engage in mediation. The (1973).4 We believe that the ICC’s prior quarter. Trains that did not operate from
mediation period concluded on August sentiment is equally valid today. scheduled origin to scheduled
14, 2015, without success. Under Section 1040.2 of the proposed destination would be excluded from this
On March 9, 2015, the Supreme Court rule, Definition of ‘‘On Time,’’ a train calculation.5 If the on-time performance
reversed the D.C. Circuit’s decision, would be considered ‘‘on time’’ if it percentage, calculated as described
finding that Amtrak is a governmental arrives at its final terminus no more above, falls below 80% in each calendar
entity for purposes of analyzing the than five minutes after its scheduled quarter for two consecutive calendar
constitutional issues surrounding the arrival time for each 100 miles the train quarters, an eligible complainant could
delegation of authority in Section 207. operated, or 30 minutes after its file a complaint requesting an
Dep’t of Transp. v. Ass’n of Am. R.Rs., scheduled arrival time, whichever is investigation pursuant to Section 213(a)
135 S. Ct. 1225 (2015). However, the less. Section 1040.3 of the proposed of PRIIA, or the Board could initiate an
Court remanded the case to the D.C. rule, Table of Maximum Allowances, investigation on its own.
Circuit for consideration of AAR’s other sets forth the following table specifying The Board proposes to adopt the ICC’s
arguments regarding the the maximum number of minutes after definition because relying on a
constitutionality of Section 207, which a scheduled arrival time that an ‘‘on- comparison between Amtrak’s
the D.C. Circuit had declined to reach. time’’ train may arrive at its final scheduled arrival time and the time an
Id. at 1234. Currently, the legality of terminus for each distance-variable Amtrak train actually arrives at its final
Section 207 of PRIIA remains in band. destination would be clear and
dispute. relatively easy to apply. In particular,
As noted, on May 15, 2015, the Board Distance operated adoption of this definition would
(miles) Maximum simplify the record-keeping and
instituted this rulemaking proceeding in allowance
response to a petition filed by AAR. In Up to and (minutes) production of evidence that may
Over otherwise be necessary for Amtrak and
that decision, the Board stated that it including
intended to issue a notice of proposed the host carriers if on-time performance
0 ................ 100 5 were defined using a number of
rulemaking and a procedural schedule 100 ............ 200 10
in a subsequent decision. The Board additional factors, such as the amount of
200 ............ 300 15 delay at intermediate stops or
found persuasive the arguments 300 ............ 400 20
regarding the advantages of rulemaking 400 ............ 500 25
construction on the host carrier’s line.
in this situation: There are multiple on- 500 ............ No limit 30 The Board seeks comments from all
time performance cases pending in interested persons on the proposed rule.
As set forth in the table, a train Importantly, the Board encourages
which the Board’s definition could
operating up to 100 miles would be ‘‘on interested persons to propose and
apply; it would be efficient to obtain the
time’’ if it arrives at its final terminus no discuss potential modifications or
full range of stakeholder perspectives in
more than five minutes after its alternatives to the proposed rule.
one docket, rather than piecemeal on a
scheduled arrival time. Likewise, a train Examples of such alternatives might
case-by-case basis; and defining on-time
operating over 100 miles but no more include, but are not limited to: Factoring
performance by rulemaking would
than 200 miles would be considered ‘‘on into the calculation of on-time
provide clarity regarding the trigger for
time’’ if it arrives at its final terminus no performance a train’s punctuality at
potential adjudications and would avoid
more than 10 minutes after its intermediate stops, rather than the final
the potential relitigation of the issue in
scheduled arrival time, and a train terminus only; implementing alternative
each case, thereby conserving party and tables of maximum allowances with
agency resources. operating a distance over 500 miles
would be considered ‘‘on time’’ if it respect to either the distance-variables
The Proposed Rule. The proposed
arrives at its final terminus no more or the maximum allowance of minutes
rule’s definition of on-time
than 30 minutes after its scheduled for each distance-variable band; or
performance, which is derived from a calculating the ‘‘on-time’’ thresholds
previous definition of on-time arrival time.
The proposed rule also provides a under an entirely different
performance used by the Interstate methodology, such as approaches that
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Commerce Commission (ICC), reads as framework for calculating quarterly on-
Amtrak or other public agencies and
follows: host carriers have implemented. The
4 Subsequently, in the Amtrak Reorganization Act
a train is deemed to be ‘‘on time’’ if it arrives of 1979, Pub. L. 96–73, 96 Stat. 537, Congress
at its final destination within five minutes of repealed the ICC’s adequacy-of-service jurisdiction 5 Thus, excluded from the calculation would be,
its scheduled arrival time per one hundred over Amtrak while establishing an internal Amtrak for example, trains that do not operate, for any
miles of operation (capped at 30 minutes). organization with similar functions. This transfer of reason; trains that terminate prematurely at an
responsibilities, however, implied no Congressional intermediate point rather than the scheduled final
The ICC’s on-time performance judgment on the merits of the ICC’s definition of on- terminus; and trains that originate at an
regulations (former 49 CFR 1124.6) time performance. intermediate point rather than the scheduled origin.
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![Federal Register / Vol. 80, No. 248 / Monday, December 28, 2015 / Proposed Rules 80741
Distance operated the area of overlapping jurisdiction, Background on the IATTC
(miles) Maximum with the exception of regulations
allowance governing the IATTC Regional Vessel The United States is a member of the
Over Up to and (minutes)
Register. This action is necessary for the IATTC, which was established under
including the 1949 Convention for the
United States to satisfy its obligations as
a member of the IATTC. Establishment of an Inter-American
200 ............ 300 15
300 ............ 400 20 Tropical Tuna Commission. The full
DATES:Comments on the proposed rule text of the 1949 Convention is available
400 ............ 500 25
and supporting documents must be at: http://www.iattc.org/PDFFiles/
500 ............ No limit 30
submitted in writing by January 27, IATTC_convention_1949.pdf.
2016.
§ 1040.4 Calculation of quarterly on-time The IATTC consists of 21 member
performance. ADDRESSES: You may submit comments nations and four cooperating non-
In any given calendar quarter, on-time on this document, identified by NOAA– member nations and facilitates scientific
performance shall be calculated as a NMFS–2015–0158, by any of the research into, as well as the
percentage using the following formula: following methods: conservation and management of, highly
(a) The denominator shall be the • Electronic Submission: Submit all migratory species of fish in the IATTC
number of trains that operated during electronic public comments via the Convention Area. The IATTC
that calendar quarter, excluding any Federal e-Rulemaking Portal. Go to Convention Area is defined as waters of
train not operating from its scheduled http://www.regulations.gov/#!docket the eastern Pacific Ocean (EPO) within
origin to its scheduled destination; and Detail;D=NOAA-NMFS-2015-0158, click the area bounded by the west coast of
(b) The numerator shall be the the ‘‘Comment Now!’’ icon, complete the Americas and by 50° N. latitude,
number of trains included in the the required fields, and enter or attach 150° W. longitude, and 50° S. latitude.
denominator that also satisfy the your comments. The IATTC has maintained a scientific
definition of ‘‘on-time performance,’’ as • Mail: Submit written comments to research and fishery monitoring
set forth in §§ 1040.2 and 1040.3. Rachael Wadsworth, NMFS West Coast program for many years, and regularly
[FR Doc. 2015–32411 Filed 12–24–15; 8:45 am] Region Long Beach Office, 501 W. assesses the status of tuna and billfish
BILLING CODE 4915–01–P Ocean Blvd., Suite 4200, Long Beach, stocks in the EPO to determine
CA 90802. Include the identifier appropriate catch limits and other
‘‘NOAA–NMFS–2015–0158’’ in the measures deemed necessary to promote
DEPARTMENT OF COMMERCE comments. sustainable fisheries and prevent the
overexploitation of these stocks.
Instructions: Comments must be
National Oceanic and Atmospheric submitted by one of the above methods International Obligations of the United
Administration to ensure they are received, States Under the Convention
documented, and considered by NMFS.
50 CFR Part 300 Comments sent by any other method, to As a Contracting Party to the 1949
any other address or individual, or Convention and a member of the IATTC,
[Docket No. 150924885–5999–01]
received after the end of the comment the United States is legally bound to
RIN 0648–BF38 period, may not be considered. All implement decisions of the IATTC. The
comments received are a part of the Tuna Conventions Act (16 U.S.C. 951–
International Fisheries; Pacific Tuna 962), as amended on November 5, 2015,
Fisheries; Fishing Restrictions for the public record and will generally be
posted for public viewing on by Title II of Public Law 114–81,
Area of Overlap Between the provides that the Secretary of
Convention Areas of the Inter- www.regulations.gov without change.
All personal identifying information Commerce, in consultation with the
American Tropical Tuna Commission Secretary of State and, with respect to
and the Western and Central Pacific (e.g., name, address, etc.) submitted
voluntarily by the sender will be enforcement measures, the Secretary of
Fisheries Commission the Department of Homeland Security,
publicly accessible. Do not submit
AGENCY: National Marine Fisheries confidential business information, or may promulgate such regulations as
Service (NMFS), National Oceanic and otherwise sensitive or protected may be necessary to carry out the
Atmospheric Administration (NOAA), information. NMFS will accept United States international obligations
Commerce. anonymous comments (enter ‘‘N/A’’ in under the Convention, including
ACTION: Proposed rule; request for the required fields if you wish to remain recommendations and decisions
comments. anonymous). adopted by the IATTC. The Secretary’s
authority to promulgate such
Copies of the draft Regulatory Impact
SUMMARY: NMFS hereby proposes regulations has been delegated to
Review and other supporting documents
regulations under the Tuna Conventions NMFS.
are available via the Federal
Act to implement Recommendation C– eRulemaking Portal: http:// Area of Overlap Recommendation
12–11 of the Inter-American Tropical www.regulations.gov, docket NOAA–
Tuna Commission (IATTC). NMFS–2015–0158 or by contacting the In 2004, the Convention on the
Recommendation C–12–11 revises the Regional Administrator, William W. Conservation and Management of
management regime for the area of Highly Migratory Fish Stocks in the
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Stelle, Jr., NMFS West Coast Region,
overlapping jurisdiction between the 7600 Sand Point Way, NE., Bldg 1, Western and Central Pacific Ocean
IATTC and the Commission for the Seattle, WA 98115–0070, or Regional entered into force. The Convention’s
Conservation and Management of Administrator.WCRHMS@noaa.gov. area of application (WCPFC Convention
Highly Migratory Fish Stocks in the Area) overlaps with the IATTC
Western and Central Pacific Ocean FOR FURTHER INFORMATION CONTACT: Convention Area. The two convention
(WCPFC). These proposed regulations Rachael Wadsworth, NMFS, West Coast areas overlap in the Pacific Ocean
provide that the management measures Region, 562–980–4036. waters within a rectangular area
of the IATTC would no longer apply in SUPPLEMENTARY INFORMATION: bounded by 50° S. latitude, 150° W.
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Document Created: 2018-03-02 09:23:54
Document Modified: 2018-03-02 09:23:54
| 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 | Notice of proposed rulemaking. | |
| Dates | Comments are due by February 8, 2016. Reply comments are due by February 29, 2016. | |
| Contact | Scott M. Zimmerman at (202) 245-0386. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. | |
| FR Citation | 80 FR 80737 |
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