81 FR 85901 - Dispute Resolution Procedures Under the Fixing America's Surface Transportation Act of 2015

SURFACE TRANSPORTATION BOARD

Federal Register Volume 81, Issue 229 (November 29, 2016)

Page Range		85901-85904
FR Document		2016-28610
The Surface Transportation Board (Board) adopts final rules to implement passenger rail-related dispute resolution provisions under the Fixing America's Surface Transportation Act of 2015 (FAST Act).
Federal Register, Volume 81 Issue 229 (Tuesday, November 29, 2016)
[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Rules and Regulations]
[Pages 85901-85904]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28610]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1109

[Docket No. EP 734]


Dispute Resolution Procedures Under the Fixing America's Surface 
Transportation Act of 2015

AGENCY: Surface Transportation Board.

ACTION: Final rules.

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SUMMARY: The Surface Transportation Board (Board) adopts final rules to 
implement passenger rail-related dispute resolution provisions under 
the Fixing America's Surface Transportation Act of 2015 (FAST Act).

DATES: These rules are effective on December 29, 2016.

ADDRESSES: Information or questions regarding these final rules should 
reference Docket No. EP 734 and be in writing addressed to: Chief, 
Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman, (202) 245-0386. 
Assistance for the hearing impaired is available through Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: Title XI of the FAST Act,\1\ entitled 
``Passenger Rail Reform and Investment Act of 2015,'' adds to the 
Board's existing passenger rail adjudicatory responsibilities related 
to the National Railroad Passenger Corporation (Amtrak). Among other 
things, Title XI includes new provisions involving cost recovery by 
Amtrak for Amtrak's operation of ``state-supported routes'' and for the 
costs allocated to states (including state entities) using the 
Northeast Corridor rail facilities for their commuter rail operations. 
As relevant here, Title XI gives the Board jurisdiction to resolve cost 
allocation and access disputes between Amtrak, the states, and 
potential non-Amtrak operators of intercity passenger rail service.\2\ 
The FAST Act directs the Board to establish procedures for the 
resolution of certain of these disputes, ``which may include the 
provision of professional mediation services.'' 49 U.S.C. 24712(c)(2) 
and 24905(c)(4).
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    \1\ Fixing America's Surface Transportation Act of 2015, Public 
Law 114-94 (signed Dec. 4, 2015).
    \2\ Currently, Amtrak is the only operator of regularly 
scheduled, common carrier intercity passenger rail service in the 
United States. Certain statutory provisions contemplate the 
possibility, in the future, of other such intercity passenger rail 
operators. See, e.g., 49 U.S.C. 24711 and 49 U.S.C. 24308(f).
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    On July 28, 2016, the Board issued a notice of proposed rulemaking 
(NPR) (81 FR 51147), seeking comment on proposed rules pursuant to the 
FAST Act. In the NPR, the Board noted that because it does not have in 
place a general set of procedural rules to govern the presentation and 
conduct of proceedings involving passenger rail matters under 49 U.S.C. 
24101-24910,\3\ which would include contested matters arising under 
Title XI of the FAST Act, parties seeking to bring contested matters 
before the Board should be guided by the Board's existing Rules of 
Practice (49 CFR parts 1100-1129), as applicable. However, the 
potential to offer ``professional mediation services'' is unique to the 
authority granted under the FAST Act, and the Board's existing Rules of 
Practice contain no applicable

[[Page 85902]]

provisions. Therefore, the Board proposed new regulations to address 
requests from one or more parties for informal assistance in securing 
outside professional mediation services pursuant to the FAST Act.
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    \3\ See 49 CFR 1100.1 (limiting the scope of the Rules of 
Practice to matters under title 49, subtitle IV of the United States 
Code, 49 U.S.C. 10101 et seq.).
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    Specifically, the NPR provided that, under a new 49 CFR 1109.5, 
parties to a dispute involving the State-Sponsored Route Committee or 
the Northeast Corridor Commission would be permitted to request the 
Board's assistance in securing outside professional mediation services 
by submitting a letter to the Board's Office of Public Assistance, 
Governmental Affairs, and Compliance (OPAGAC). OPAGAC would then 
contact the requesting party or parties in response to such requests 
within 14 days of receipt of the request to assist in arranging for 
professional mediation services.
    After careful consideration of the comments received, the Board is 
promulgating a set of procedural rules that adopt and clarify the 
provisions of the NPR regarding professional mediation services with 
respect to certain passenger rail matters under Title XI of the FAST 
Act.

FAST Act Provisions

    The State-Supported Route Committee. Section 11204 of the FAST Act 
adds a new section to the United States Code: 49 U.S.C. 24712, ``State 
supported routes operated by Amtrak.'' State-supported routes are 
intercity rail passenger routes for which operating and capital costs 
are established and allocated among the states and Amtrak under section 
209 of the Passenger Rail Investment and Improvement Act of 2008 
(PRIIA).\4\ Under these agreements, Amtrak currently receives funding 
from states and state-related entities to operate routes under 750 
miles in length. New section 24712 establishes a State-Supported Route 
Committee comprised of Amtrak, the U.S. Department of Transportation/
Federal Railroad Administration, and states that subsidize state-
supported routes, to implement the cost-allocation methodology 
previously developed under section 209 of PRIIA through negotiation 
between Amtrak and the affected states and approved by the Board. See 
Amtrak's Pet. for Determination of PRIIA Sec. 209 Cost Methodology, FD 
35571 (STB served Mar. 15, 2012). The Committee may also amend that 
cost-allocation methodology. Section 24712(c)(1) gives the Board 
jurisdiction to ``conduct dispute resolution'' pertaining to (1) the 
Committee's rules and procedures, (2) the invoices to be produced by 
Amtrak or reports to be produced by Amtrak or the states as described 
in section 24712(b), and (3) the implementation of or compliance with 
the cost allocation methodology. Section 24712(c)(2) requires the Board 
to establish procedures for resolving such disputes, which procedures 
``may include provision of professional mediation services.''
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    \4\ Public Law 110-432, Section 209; 49 U.S.C. 24101 note.
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    The Northeast Corridor Commission. Section 11305 of the FAST Act, 
which amends 49 U.S.C. 24905, involves the powers and obligations of 
the Northeast Corridor Commission (NEC Commission), created by Congress 
in 2008 as part of PRIIA.\5\ The NEC Commission is responsible for 
developing and implementing a standardized policy for determining and 
allocating costs, revenues, and compensation between Amtrak and the 
providers of commuter rail passenger transportation on the Northeast 
Corridor. The FAST Act amends 49 U.S.C. 24905 with respect to the 
Board's role in resolving disputes between Amtrak and the states in 
determining compensation for use of the Northeast Corridor in light of 
the policy approved by the NEC Commission. Under the new subsection, 49 
U.S.C. 24905(c)(4), the FAST Act permits the NEC Commission, Amtrak, or 
public authorities providing commuter rail passenger transportation on 
the Northeast Corridor to request that the Board conduct dispute 
resolution if a dispute arises over implementation of, or compliance 
with, the NEC Commission's cost allocation policy. The new subsection 
requires the Board to establish procedures for resolving such disputes 
and provides that those procedures ``may include the provision of 
professional mediation services.''
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    \5\ The NEC Commission was originally established as the 
Northeast Corridor Infrastructure and Operations Advisory 
Commission. See 49 U.S.C. 24905. It is composed of voting 
representatives from Amtrak, the U.S. Department of Transportation, 
and the states comprising the Northeast Corridor (including the 
District of Columbia).
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Comments

    The Board sought comments on the proposed regulations by August 31, 
2016, and replies by September 30, 2016. The Board received comments 
from six parties: California Department of Transportation (Caltrans), 
Los Angeles-San Diego-San Luis Obispo Rail Corridor Agency (LOSSAN 
Agency), Amtrak, U.S. Department of Transportation (DOT), San Joaquin 
Joint Powers Authority (SJJPA), and Capitol Corridor Joint Powers 
Authority (CCJPA). Amtrak filed a reply.
    Caltrans, LOSSAN Agency, SJJPA, and CCJPA (California Entities) all 
assert that the NPR did not meet the intent and requirement of the FAST 
Act. They state that the proposed mediation regulation is non-binding 
and that in order to efficiently resolve disputes, parties should have 
recourse to a binding mechanism for resolving such disputes. The 
California Entities suggest that the Board adopt binding arbitration, 
either before the Board or a third-party arbitrator, as the dispute 
resolution procedures required under section 24712. They further 
propose that arbitration be mandatory and that the Board compel 
arbitration upon request from a State or Amtrak. Lastly, the California 
Entities suggest that the Board clarify the proposed mediation 
regulation to address whether the Board will: (1) Maintain a list of 
mediators; (2) intervene if parties cannot agree to a mediator; (3) 
establish terms for payment of mediation services; and (4) require 
parties to participate in mediation.
    In its initial comments, Amtrak supports the proposed rule and 
suggest two clarifications. First, Amtrak asserts that the proposed 49 
CFR 1109.5 is ambiguous as to whether the Board's existing mediation 
rules apply to formally contested matters involving the State-Supported 
Route Committee (section 209 of PRIIA) or the Northeast Corridor 
Commission (section 212 of PRIIA). Amtrak suggests adding language 
which explicitly states, ``mediation procedures under [49 CFR] 1109.1, 
1109.2, and 1109.3 are applicable'' to disputes arising under sections 
209 or 212 of PRIIA. Second, Amtrak proposes that the Board clarify and 
expand the procedures following the filing of a request with OPAGAC for 
securing professional mediation assistance.
    In its reply comments, Amtrak responded to the California Entities' 
requests for the Board to adopt binding arbitration. Amtrak states that 
arbitration is a voluntary alternate dispute mechanism and that nothing 
in the FAST Act suggests that the Board should impose arbitration on 
unwilling parties. Amtrak also argues that the FAST Act does not 
authorize the Board to delegate its decision-making power to a third-
party arbitrator. Lastly, Amtrak argues that binding arbitration is not 
the best tool for resolving recurring issues in which uniformity among 
multiple parties is needed.

[[Page 85903]]

The Final Rules

    After considering the comments received, the Board is adopting 
final rules, as set forth in the Appendix, for the mediation of 
passenger rail disputes involving the State-Sponsored Route Committee 
or the Northeast Corridor Commission. Formal disputes under 49 U.S.C. 
24712 and 24905 would be conducted using the Board's existing Rules of 
Practice as a guide. Parties interested in professional mediation 
services could seek the Board's informal assistance in securing such 
services by submitting a letter to OPAGAC. Such informal assistance may 
be sought even if no party has filed a formal complaint with the Board.
    The Board does not agree with the California Entities that section 
11204 of the FAST Act authorizes or requires the Board to resolve PRIIA 
section 209 disputes through binding arbitration. (Neither does any 
such authorization or requirement appear in FAST Act section 11305, 
with regard to PRIIA section 212.) While the FAST Act specifically 
mentions professional mediation services, it does not state or 
otherwise suggest the use of arbitration as a potential dispute 
resolution procedure. Further, as Amtrak points out, parties have to 
agree on arbitration as the method to resolve their disputes. 
Therefore, provisions for binding arbitration will not be included as 
part of the regulations adopted here.
    CCJPA argues that the plain language of the FAST Act contemplates a 
more significant role for the Board than providing informal assistance 
in securing outside professional mediation services--specifically, that 
the statute contemplates ``dispute resolution'' by the Board itself. 
(CCJPA Comments 2.) To the extent that CCJPA is arguing that the Board 
should be involved in ``dispute resolution'' by issuing decisions on 
disputes arising under the FAST Act, as noted above, parties may bring 
contested matters under section 11204 or section 11305 of the FAST Act 
before the Board, guided by the Board's existing Rules of Practice. 
See, e.g., Pet. of the Nat'l R.R. Passenger Corp. for Relief Pursuant 
to 49 U.S.C. 24905, FD 36048 (STB served Oct. 3, 2016). Alternatively, 
if CCJPA believes that the Board should engage in dispute resolution by 
conducting mediation itself and not simply relying on outside 
professional mediators, as discussed further below, the new rules 
provide that in cases where a formal complaint is brought under 
sections 209 or 212 of PRIIA, the Board's existing rules under part 
1109 for mediation in Board proceedings would apply.
    The California Entities have asked that the Board clarify the 
proposed rule to address questions about choosing professional 
mediators, payment of mediation services, and whether participation in 
mediation would be mandatory. (Caltrans Comments 1; CCJPA Comments 3; 
SJJPA Comments 2; LOSSAN Agency Comments 2.) Similarly, Amtrak proposes 
expanding 49 CFR 1109.5 to include specifics such as timing and means 
of service of the requesting letter on all affected parties, whether 
parties must consent, the purpose for which OPAGAC will contact the 
requesting party, and whether and how OPAGAC will contact other 
affected parties. However, as these rules are intended to provide 
guidance for informal requests, in which parties and OPAGAC retain 
maximal flexibility in arranging for professional mediation, the Board 
believes that these issues should not be codified in regulations but 
left in the first instance to discussions between OPAGAC and the 
requesting party or parties, following receipt of a request. 
Accordingly, the Board will not adopt commenters' suggestions to 
address such specifics.
    Amtrak also asks that the rules clarify whether the Board's 
existing mediation rules apply to contested matters under section 209 
or 212 of PRIIA. The Board's proposed rule contemplated that the 
existing, applicable mediation procedures under 49 CFR part 1109 \6\ 
would be available in formal complaint cases brought under sections 209 
or 212 of PRIIA. See Sec.  1109.5(a) and (b) (noting that requests for 
assistance in securing professional mediation services are ``[i]n 
addition to the mediation procedures under this Part 1109 that are 
available following the filing of a complaint . . .'') (emphasis 
added). We reiterate here that, in cases where a formal complaint is 
brought under sections 209 or 212 of PRIIA, the preexisting mediation 
rules under part 1109 shall apply.
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    \6\ Rather than identifying each individual subsection, this 
language encompasses the existing procedures available to parties 
after the filing of a complaint in Sec. Sec.  1109.1, 1109.2, and 
1109.3. The mediation rules for rate cases under the stand-alone 
cost methodology (49 CFR 1109.4) are inapplicable here.
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    In asking for this last clarification, Amtrak states that there may 
be ambiguity with respect to whether the current provisions of part 
1109 apply in a contested matter under PRIIA because part 1109 deals 
with mediation after the filing of a complaint. It is the Board's 
intention that an informal request for assistance in securing 
professional mediation services be available not only in instances 
where there has not been a formal complaint filed, but also during the 
pendency of a formal complaint case--as long as a motion is filed in 
that formal proceeding requesting that it be held in abeyance in light 
of the request for informal assistance. Thus, we have modified the 
rules proposed in the NPR to include this clarification. See Sec.  
1109.5(a) and (b).

Paperwork Reduction Act

    In the NPR, the Board sought comments under the Paperwork Reduction 
Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget 
(OMB) regulations at 5 CFR 1320.8(d)(3). No comments addressing PRA 
issues were received. Due to a technical omission in the NPR under the 
PRA, the Board will continue to seek OMB approval for this collection 
in a separate notice. Any comments received by the Board from that 
notice will be forwarded to OMB for its review and will be posted under 
this docket.

Regulatory Flexibility Act Certification

    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. 5 U.S.C. 601-604. In 
its notice of proposed rulemaking, the agency must either include an 
initial regulatory flexibility analysis, section 603(a), or certify 
that the proposed rule would not have a ``significant impact on a 
substantial number of small entities.'' section 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).
    In the NPR, the Board certified under 5 U.S.C. 605(b) that the 
proposed rules would not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA.\7\

[[Page 85904]]

The Board explained that the proposed regulations would specify 
procedures related to dispute resolution of certain passenger rail 
transportation matters by the Board and do not mandate or circumscribe 
the conduct of small entities. The Board further noted that if a party 
wishing to utilize the proposed procedures files a complaint, petition, 
application, or request for dispute resolution, that entity will not 
encounter any additional burden and that, rather, the procedures are 
being updated and clarified by the regulations. The NPR was served upon 
the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business 
Administration.
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    \7\ Effective June 30, 2016, for the purpose of RFA analysis for 
rail carriers subject to our jurisdiction, the Board defines a 
``small business'' as a rail carrier classified as a Class III rail 
carrier under 49 CFR 1201.1-1. See Small Entity Size Standards Under 
the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) 
(with Commissioner Begeman dissenting). Class III carriers have 
annual operating revenues of $20 million or less in 1991 dollars, or 
$36,633,119 or less when adjusted for inflation using 2015 data. 
Class II rail carriers have annual operating revenues of up to $250 
million in 1991 dollars or up to $457,913,997 when adjusted for 
inflation using 2015 data. The Board calculates the revenue deflator 
factor annually and publishes the railroad revenue thresholds on its 
Web site. 49 CFR 1201.1-1.
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    The final rules adopted here make slight modifications to the 
proposed rule, but the same basis for the Board's certification of the 
proposed rule applies to the final rules adopted here. The modification 
adopted in the final rule refines the proposed rule by clarifying the 
circumstances under which the informal process for seeking Board 
assistance in pursuing professional mediation services will be 
available. Therefore, the Board certifies under 5 U.S.C. 605(b) that 
this rule will not have a significant economic impact on a substantial 
number of small entities as defined by 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.

List of Subjects in 49 CFR Part 1109

    Administrative practice and procedure, Maritime carriers, Motor 
carriers, Railroads.
    It is ordered:
    1. The Board adopts the final rules as set forth in this decision. 
Notice of the adopted rules will be published in the Federal Register.
    2. 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.
    3. This decision is effective December 29, 2016.

    Decided: November 22, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and 
Commissioner Begeman.
Kenyatta Clay,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board amends part 1109 of title 49, chapter X, of the 
Code of Federal Regulations as follows:

PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS

0
1. Revise the authority citation for part 1109 to read as follows:

    Authority: 5 U.S.C. 571 et seq. and 49 U.S.C. 1321(a), 24712(c), 
and 24905(c).


0
2. Add Sec.  1109.5 to read as follows:


Sec.  1109.5  Resolution of certain disputes involving the State 
Sponsored Route Committee and the Northeast Corridor Commission.

    (a) In addition to the mediation procedures under this part that 
are available following the filing of a complaint in a proceeding 
before the Board, Amtrak or a State member of the State Supported Route 
Committee established under 49 U.S.C. 24712 may request that the Board 
informally assist in securing outside professional mediation services 
in order to resolve disputes arising from: Implementation of, or 
compliance with, the cost allocation methodology for State-Supported 
Routes developed under section 209 of the Passenger Rail Investment and 
Improvement Act of 2008 or amended under 49 U.S.C. 24712(a)(6); 
invoices or reports provided under 49 U.S.C. 24712(b); or rules and 
procedures implemented by the State Supported Route Committee under 49 
U.S.C. 24712(a)(4). With respect to a particular dispute, such a 
request for informal assistance in securing outside professional 
mediation services may be submitted to the Board:
    (1) In the absence of a complaint proceeding before the Board; or
    (2) If, while a formal complaint is pending before the Board, a 
motion is filed in that formal proceeding requesting that it be held in 
abeyance in light of the request for informal assistance.
    (b) In addition to the mediation procedures under this part that 
are available following the filing of a complaint in a proceeding 
before the Board, the Northeast Corridor Commission established under 
49 U.S.C. 24905, Amtrak, or public authorities providing commuter rail 
passenger transportation on the Northeast Corridor may request that the 
Board informally assist in securing outside professional mediation 
services in order to resolve disputes involving implementation of, or 
compliance with, the policy developed under 49 U.S.C. 24905(c)(1). With 
respect to a particular dispute, such a request for informal assistance 
in securing outside professional mediation services may be submitted to 
the Board:
    (1) In the absence of a complaint proceeding before the Board; or
    (2) If, while a formal complaint is pending before the Board, a 
motion is filed in that formal proceeding requesting that it be held in 
abeyance in light of the request for informal assistance.
    (c) A request for informal Board assistance in securing outside 
professional mediation services under paragraph (a) or (b) of this 
section shall be submitted by letter duly authorized to be submitted to 
the Board by the requesting party. The request letter shall be 
addressed to the Director of the Board's Office of Public Assistance, 
Governmental Affairs, and Compliance, and shall include a concise 
description of the issues for which outside professional mediation 
services are sought. The Office of Public Assistance, Governmental 
Affairs, and Compliance shall contact the requesting party in response 
to such request within 14 days of receipt of the request.

[FR Doc. 2016-28610 Filed 11-28-16; 8:45 am]
 BILLING CODE 4915-01-P
Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Rules and Regulations 85901

Protection, dated May 5, 2015, ■ 3. In § 52.1167, Table 52.1167 is § 52.1167 EPA-approved Massachusetts
submitting a revision to the amended by adding new entries for the State regulations.
Massachusetts State Implementation existing state citations for 310 CMR * * * * *
Plan. 7.00, 310 CMR 7.24(3), 310 CMR 7.24(4),
and 310 CMR 7.24(6) to read as follows:

TABLE 52.1167—EPA-APPROVED RULES AND REGULATIONS
[See Notes at end of table]

Date Date
State Federal Register
Title/subject submitted approved 52.1120(c) Comments/unapproved sections
citation citation
by State by EPA

* * * * * * *
310 CMR Air Pollution Control: 5/5/15 11/29/16 [Insert Federal Reg- 144 Revises definitions that relate to
7.00. Definitions. ister citation]. Stage I and Stage II vapor re-
covery systems.

* * * * * * *
310 CMR Distribution of Motor 5/5/15 11/29/16 [Insert Federal Reg- 144 Revised to require Stage I En-
7.24(3). Vehicle Fuel. ister citation]. hanced Vapor Recovery sys-
tems certified by the California
Air Resources Board.
310 CMR Motor Vehicle Fuel 5/5/15 11/29/16 [Insert Federal Reg- 144 Revised to make minor clarifying
7.24(4). Tank Trucks. ister citation]. amendments.

* * * * * * *
310 CMR Dispensing of Motor 5/5/15 11/29/16 [Insert Federal Reg- 144 Revised to require the decommis-
7.24(6). Vehicle Fuel. ister citation]. sioning of Stage II vapor recov-
ery systems.

* * * * * * *
Notes:
1. This table lists regulations adopted as of 1972. It does not depict regulatory requirements which may have been part of the Federal SIP be-
fore this date.
2. The regulations are effective statewide unless otherwise stated in comments or title section.

[FR Doc. 2016–28587 Filed 11–28–16; 8:45 am] FOR FURTHER INFORMATION CONTACT: Board to establish procedures for the
BILLING CODE 6560–50–P Scott M. Zimmerman, (202) 245–0386. resolution of certain of these disputes,
Assistance for the hearing impaired is ‘‘which may include the provision of
available through Federal Information professional mediation services.’’ 49
SURFACE TRANSPORTATION BOARD Relay Service (FIRS) at (800) 877–8339. U.S.C. 24712(c)(2) and 24905(c)(4).
SUPPLEMENTARY INFORMATION: Title XI of On July 28, 2016, the Board issued a
49 CFR Part 1109 the FAST Act,1 entitled ‘‘Passenger Rail notice of proposed rulemaking (NPR)
Reform and Investment Act of 2015,’’ (81 FR 51147), seeking comment on
[Docket No. EP 734]
adds to the Board’s existing passenger proposed rules pursuant to the FAST
Dispute Resolution Procedures Under rail adjudicatory responsibilities related Act. In the NPR, the Board noted that
the Fixing America’s Surface to the National Railroad Passenger because it does not have in place a
Transportation Act of 2015 Corporation (Amtrak). Among other general set of procedural rules to govern
things, Title XI includes new provisions the presentation and conduct of
AGENCY: Surface Transportation Board. proceedings involving passenger rail
involving cost recovery by Amtrak for
ACTION: Final rules. Amtrak’s operation of ‘‘state-supported matters under 49 U.S.C. 24101–24910,3
routes’’ and for the costs allocated to which would include contested matters
SUMMARY: The Surface Transportation arising under Title XI of the FAST Act,
Board (Board) adopts final rules to states (including state entities) using the
Northeast Corridor rail facilities for their parties seeking to bring contested
implement passenger rail-related matters before the Board should be
dispute resolution provisions under the commuter rail operations. As relevant
here, Title XI gives the Board guided by the Board’s existing Rules of
Fixing America’s Surface Transportation Practice (49 CFR parts 1100–1129), as
Act of 2015 (FAST Act). jurisdiction to resolve cost allocation
and access disputes between Amtrak, applicable. However, the potential to
DATES: These rules are effective on offer ‘‘professional mediation services’’
the states, and potential non-Amtrak
December 29, 2016. operators of intercity passenger rail is unique to the authority granted under
ADDRESSES: Information or questions service.2 The FAST Act directs the the FAST Act, and the Board’s existing
jstallworth on DSK7TPTVN1PROD with RULES

regarding these final rules should Rules of Practice contain no applicable
reference Docket No. EP 734 and be in 1 Fixing America’s Surface Transportation Act of

writing addressed to: Chief, Section of 2015, Public Law 114–94 (signed Dec. 4, 2015). operators. See, e.g., 49 U.S.C. 24711 and 49 U.S.C.
Administration, Office of Proceedings, 2 Currently, Amtrak is the only operator of 24308(f).
regularly scheduled, common carrier intercity 3 See 49 CFR 1100.1 (limiting the scope of the
Surface Transportation Board, 395 E passenger rail service in the United States. Certain Rules of Practice to matters under title 49, subtitle
Street SW., Washington, DC 20423– statutory provisions contemplate the possibility, in IV of the United States Code, 49 U.S.C. 10101 et
0001. the future, of other such intercity passenger rail seq.).

VerDate Sep<11>2014 14:25 Nov 28, 2016 Jkt 241001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\29NOR1.SGM 29NOR1
Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Rules and Regulations 85903

The Final Rules The California Entities have asked the pendency of a formal complaint
After considering the comments that the Board clarify the proposed rule case—as long as a motion is filed in that
received, the Board is adopting final to address questions about choosing formal proceeding requesting that it be
rules, as set forth in the Appendix, for professional mediators, payment of held in abeyance in light of the request
the mediation of passenger rail disputes mediation services, and whether for informal assistance. Thus, we have
involving the State-Sponsored Route participation in mediation would be modified the rules proposed in the NPR
Committee or the Northeast Corridor mandatory. (Caltrans Comments 1; to include this clarification. See
Commission. Formal disputes under 49 CCJPA Comments 3; SJJPA Comments 2; § 1109.5(a) and (b).
U.S.C. 24712 and 24905 would be LOSSAN Agency Comments 2.)
Paperwork Reduction Act
conducted using the Board’s existing Similarly, Amtrak proposes expanding
49 CFR 1109.5 to include specifics such In the NPR, the Board sought
Rules of Practice as a guide. Parties comments under the Paperwork
interested in professional mediation as timing and means of service of the
requesting letter on all affected parties, Reduction Act (PRA), 44 U.S.C. 3501–
services could seek the Board’s informal 3549, and Office of Management and
whether parties must consent, the
assistance in securing such services by Budget (OMB) regulations at 5 CFR
purpose for which OPAGAC will
submitting a letter to OPAGAC. Such 1320.8(d)(3). No comments addressing
contact the requesting party, and
informal assistance may be sought even PRA issues were received. Due to a
whether and how OPAGAC will contact
if no party has filed a formal complaint technical omission in the NPR under the
other affected parties. However, as these
with the Board. PRA, the Board will continue to seek
The Board does not agree with the rules are intended to provide guidance
for informal requests, in which parties OMB approval for this collection in a
California Entities that section 11204 of separate notice. Any comments received
and OPAGAC retain maximal flexibility
the FAST Act authorizes or requires the by the Board from that notice will be
in arranging for professional mediation,
Board to resolve PRIIA section 209 forwarded to OMB for its review and
the Board believes that these issues
disputes through binding arbitration. will be posted under this docket.
should not be codified in regulations
(Neither does any such authorization or
but left in the first instance to Regulatory Flexibility Act Certification
requirement appear in FAST Act section
discussions between OPAGAC and the
11305, with regard to PRIIA section The Regulatory Flexibility Act of 1980
requesting party or parties, following
212.) While the FAST Act specifically (RFA), 5 U.S.C. 601–612, generally
receipt of a request. Accordingly, the
mentions professional mediation requires a description and analysis of
Board will not adopt commenters’
services, it does not state or otherwise suggestions to address such specifics. new rules that would have a significant
suggest the use of arbitration as a Amtrak also asks that the rules clarify economic impact on a substantial
potential dispute resolution procedure. whether the Board’s existing mediation number of small entities. In drafting a
Further, as Amtrak points out, parties rules apply to contested matters under rule, an agency is required to: (1) Assess
have to agree on arbitration as the section 209 or 212 of PRIIA. The Board’s the effect that its regulation will have on
method to resolve their disputes. proposed rule contemplated that the small entities; (2) analyze effective
Therefore, provisions for binding existing, applicable mediation alternatives that may minimize a
arbitration will not be included as part procedures under 49 CFR part 1109 6 regulation’s impact; and (3) make the
of the regulations adopted here. would be available in formal complaint analysis available for public comment. 5
CCJPA argues that the plain language cases brought under sections 209 or 212 U.S.C. 601–604. In its notice of
of the FAST Act contemplates a more of PRIIA. See § 1109.5(a) and (b) (noting proposed rulemaking, the agency must
significant role for the Board than that requests for assistance in securing either include an initial regulatory
providing informal assistance in professional mediation services are ‘‘[i]n flexibility analysis, section 603(a), or
securing outside professional mediation addition to the mediation procedures certify that the proposed rule would not
services—specifically, that the statute under this Part 1109 that are available have a ‘‘significant impact on a
contemplates ‘‘dispute resolution’’ by following the filing of a complaint . . .’’) substantial number of small entities.’’
the Board itself. (CCJPA Comments 2.) (emphasis added). We reiterate here section 605(b). The impact must be a
To the extent that CCJPA is arguing that that, in cases where a formal complaint direct impact on small entities ‘‘whose
the Board should be involved in is brought under sections 209 or 212 of conduct is circumscribed or mandated’’
‘‘dispute resolution’’ by issuing PRIIA, the preexisting mediation rules by the proposed rule. White Eagle Coop.
decisions on disputes arising under the under part 1109 shall apply. v. Conner, 553 F.3d 467, 480 (7th Cir.
FAST Act, as noted above, parties may In asking for this last clarification, 2009).
bring contested matters under section Amtrak states that there may be In the NPR, the Board certified under
11204 or section 11305 of the FAST Act ambiguity with respect to whether the 5 U.S.C. 605(b) that the proposed rules
before the Board, guided by the Board’s current provisions of part 1109 apply in would not have a significant economic
existing Rules of Practice. See, e.g., Pet. a contested matter under PRIIA because impact on a substantial number of small
of the Nat’l R.R. Passenger Corp. for part 1109 deals with mediation after the entities within the meaning of the RFA.7
Relief Pursuant to 49 U.S.C. 24905, FD filing of a complaint. It is the Board’s 7 Effective June 30, 2016, for the purpose of RFA
36048 (STB served Oct. 3, 2016). intention that an informal request for analysis for rail carriers subject to our jurisdiction,
Alternatively, if CCJPA believes that the assistance in securing professional the Board defines a ‘‘small business’’ as a rail
Board should engage in dispute mediation services be available not only carrier classified as a Class III rail carrier under 49
resolution by conducting mediation in instances where there has not been a CFR 1201.1–1. See Small Entity Size Standards
itself and not simply relying on outside Under the Regulatory Flexibility Act, EP 719 (STB
formal complaint filed, but also during
jstallworth on DSK7TPTVN1PROD with RULES

served June 30, 2016) (with Commissioner Begeman
professional mediators, as discussed dissenting). Class III carriers have annual operating
further below, the new rules provide 6 Rather than identifying each individual revenues of $20 million or less in 1991 dollars, or
that in cases where a formal complaint subsection, this language encompasses the existing $36,633,119 or less when adjusted for inflation
is brought under sections 209 or 212 of procedures available to parties after the filing of a using 2015 data. Class II rail carriers have annual
complaint in §§ 1109.1, 1109.2, and 1109.3. The operating revenues of up to $250 million in 1991
PRIIA, the Board’s existing rules under mediation rules for rate cases under the stand-alone dollars or up to $457,913,997 when adjusted for
part 1109 for mediation in Board cost methodology (49 CFR 1109.4) are inapplicable inflation using 2015 data. The Board calculates the
proceedings would apply. here. Continued

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85904 Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Rules and Regulations

The Board explained that the proposed chapter X, of the Code of Federal professional mediation services may be
regulations would specify procedures Regulations as follows: submitted to the Board:
related to dispute resolution of certain (1) In the absence of a complaint
passenger rail transportation matters by PART 1109—USE OF MEDIATION IN proceeding before the Board; or
the Board and do not mandate or BOARD PROCEEDINGS (2) If, while a formal complaint is
circumscribe the conduct of small pending before the Board, a motion is
entities. The Board further noted that if ■ 1. Revise the authority citation for part filed in that formal proceeding
a party wishing to utilize the proposed 1109 to read as follows: requesting that it be held in abeyance in
procedures files a complaint, petition, Authority: 5 U.S.C. 571 et seq. and 49 light of the request for informal
application, or request for dispute U.S.C. 1321(a), 24712(c), and 24905(c). assistance.
resolution, that entity will not (c) A request for informal Board
■ 2. Add § 1109.5 to read as follows: assistance in securing outside
encounter any additional burden and
that, rather, the procedures are being § 1109.5 Resolution of certain disputes professional mediation services under
updated and clarified by the regulations. involving the State Sponsored Route paragraph (a) or (b) of this section shall
The NPR was served upon the Chief Committee and the Northeast Corridor be submitted by letter duly authorized
Counsel for Advocacy, Office of Commission. to be submitted to the Board by the
Advocacy, U.S. Small Business (a) In addition to the mediation requesting party. The request letter shall
Administration. procedures under this part that are be addressed to the Director of the
The final rules adopted here make available following the filing of a Board’s Office of Public Assistance,
slight modifications to the proposed complaint in a proceeding before the Governmental Affairs, and Compliance,
rule, but the same basis for the Board’s Board, Amtrak or a State member of the and shall include a concise description
certification of the proposed rule State Supported Route Committee of the issues for which outside
applies to the final rules adopted here. established under 49 U.S.C. 24712 may professional mediation services are
The modification adopted in the final request that the Board informally assist sought. The Office of Public Assistance,
rule refines the proposed rule by in securing outside professional Governmental Affairs, and Compliance
clarifying the circumstances under mediation services in order to resolve shall contact the requesting party in
which the informal process for seeking disputes arising from: Implementation response to such request within 14 days
Board assistance in pursuing of, or compliance with, the cost of receipt of the request.
professional mediation services will be allocation methodology for State- [FR Doc. 2016–28610 Filed 11–28–16; 8:45 am]
available. Therefore, the Board certifies Supported Routes developed under BILLING CODE 4915–01–P
under 5 U.S.C. 605(b) that this rule will section 209 of the Passenger Rail
not have a significant economic impact Investment and Improvement Act of
on a substantial number of small entities 2008 or amended under 49 U.S.C. DEPARTMENT OF COMMERCE
as defined by the RFA. A copy of this 24712(a)(6); invoices or reports
decision will be served upon the Chief provided under 49 U.S.C. 24712(b); or National Oceanic and Atmospheric
Counsel for Advocacy, Office of rules and procedures implemented by Administration
Advocacy, U.S. Small Business the State Supported Route Committee
Administration, Washington, DC 20416. under 49 U.S.C. 24712(a)(4). With 50 CFR Part 648
respect to a particular dispute, such a [Docket No. 151130999–6225–01]
List of Subjects in 49 CFR Part 1109
request for informal assistance in
Administrative practice and securing outside professional mediation RIN 0648–XF049
procedure, Maritime carriers, Motor services may be submitted to the Board:
carriers, Railroads. (1) In the absence of a complaint Fisheries of the Northeastern United
It is ordered: proceeding before the Board; or States; Atlantic Bluefish Fishery;
1. The Board adopts the final rules as Quota Transfers
(2) If, while a formal complaint is
set forth in this decision. Notice of the pending before the Board, a motion is AGENCY: National Marine Fisheries
adopted rules will be published in the filed in that formal proceeding Service (NMFS), National Oceanic and
Federal Register. requesting that it be held in abeyance in Atmospheric Administration (NOAA),
2. A copy of this decision will be light of the request for informal Commerce.
served upon the Chief Counsel for assistance. ACTION: Temporary rule; approval of
Advocacy, Office of Advocacy, U.S. (b) In addition to the mediation quota transfers.
Small Business Administration, procedures under this part that are
Washington, DC 20416. available following the filing of a SUMMARY: NMFS announces its approval
3. This decision is effective December complaint in a proceeding before the of two transfers of 2016 commercial
29, 2016. Board, the Northeast Corridor bluefish quota from the Commonwealth
Decided: November 22, 2016. Commission established under 49 of Virginia to the State of New York.
By the Board, Chairman Elliott, Vice U.S.C. 24905, Amtrak, or public The approval of these transfers complies
Chairman Miller, and Commissioner authorities providing commuter rail with the Atlantic Bluefish Fishery
Begeman. passenger transportation on the Management Plan quota transfer
Kenyatta Clay, Northeast Corridor may request that the provision. This announcement also
Clearance Clerk. Board informally assist in securing informs the public of the revised
jstallworth on DSK7TPTVN1PROD with RULES

outside professional mediation services commercial quotas for Virginia and New
For the reasons set forth in the York.
in order to resolve disputes involving
preamble, the Surface Transportation DATES: Effective November 28, 2016,
implementation of, or compliance with,
Board amends part 1109 of title 49, through December 31, 2016.
the policy developed under 49 U.S.C.
revenue deflator factor annually and publishes the
24905(c)(1). With respect to a particular FOR FURTHER INFORMATION CONTACT: Reid
railroad revenue thresholds on its Web site. 49 CFR dispute, such a request for informal Lichwell, Fishery Management
1201.1–1. assistance in securing outside Specialist, (978) 281–9112.

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Document Created: 2016-11-29 00:33:35
Document Modified: 2016-11-29 00:33:35
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		Rules and Regulations
Action		Final rules.
Dates		These rules are effective on December 29, 2016.
Contact		Scott M. Zimmerman, (202) 245-0386. Assistance for the hearing impaired is available through Federal Information Relay Service (FIRS) at (800) 877-8339.
FR Citation		81 FR 85901
CFR Associated		Administrative Practice and Procedure; Maritime Carriers; Motor Carriers and Railroads