On-Time Performance Under Section 213 of the Passenger Rail Investment and Improvement Act of 2008, 80737-80741 [2015-32411]
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Federal Register / Vol. 80, No. 248 / Monday, December 28, 2015 / Proposed Rules
method described in paragraph 4.3.2.1
of ANSI/EIA/TIA–579–1991. No
variation in loop conditions is required
for this measurement since the receive
level of a digital telephone is
independent of loop length.
(f) The ROLR for either an analog or
digital telephone shall first be
determined with the receive volume
control at its normal unamplified level.
The minimum volume control setting
shall be used for this measurement
unless the manufacturer identifies a
different setting for the nominal volume
level. The ROLR shall then be
determined with the receive volume
control at its maximum volume setting.
Since ROLR is a loudness rating value
expressed in dB of loss, more positive
values of ROLR represent lower receive
levels. Therefore, the ROLR value
determined for the maximum volume
control setting should be subtracted
from that determined for the nominal
volume control setting to determine
compliance with the gain requirement.
(g) The 18 dB of receive gain may be
exceeded provided that the amplified
receive capability automatically resets
to nominal gain when the telephone is
caused to pass through a proper on-hook
transition in order to minimize the
likelihood of damage to individuals
with normal hearing.
(h) A telephone complies with the
Commission’s volume control
requirements if it is equipped with a
receive volume control that provides,
through the receiver in the handset or
headset of the telephone, 18 dB of
Conversational Gain minimum and up
to 24 dB of Conversational Gain
maximum when measured as described
in ANSI/TIA–4965–2012
(Telecommunications—Telephone
Terminal Equipment—Receive Volume
Control Requirements for Digital and
Analog Wireline Telephones). The 18
dB of Conversational Gain minimum
must be achieved without significant
clipping of the speech signal used for
testing.
(i) The 24 dB of Conversational Gain
maximum may be exceeded provided
the amplified receive capability
automatically resets to a level less than
18 dB of Conversational Gain when the
telephone is caused to pass through a
proper on-hook transition in order to
minimize the likelihood of damage to
individuals with normal hearing.
(j) These incorporations by reference
of paragraph 4.1.2 (including table 4.4)
of American National Standards
Institute (ANSI) Standard ANSI/EIA–
470–A–1987, paragraph 4.3.2 of ANSI/
EIA/TIA–579–1991, and ANSI/TIA–
4965–2012 were approved by the
Director of the Federal Register in
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accordance with 5 U.S.C. 552(a) and 1
CFR part 51. Copies of these
publications may be purchased from the
American National Standards Institute
(ANSI), Sales Department, 11 West 42nd
Street, 13th Floor, New York, NY 10036,
(212) 642–4900, or https://
global.ihs.com/. Copies also may be
inspected during normal business hours
at the following locations: Consumer
and Governmental Affairs Bureau,
Reference Information Center, Federal
Communications Commission, 445 12th
Street SW., Washington, DC 20554; and
the National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal_register/code_of_federal_
regulations/ibr_locations.html. These
standards may also be viewed on the
‘‘ANSI Incorporated by Reference (IBR)
Portal’’ at https://ibr.ansi.org/.
(k) Manufacturers and other
responsible parties of telephones subject
to this rule shall engage in consultation
with people with hearing loss and their
representative organizations for the
purpose of assessing the effectiveness of
the standard adopted pursuant to
paragraph (j) of this section. Such
consultation shall include testing a
sample of products certified to be
compliant with the revised standard to
evaluate whether products compliant
with such standard are providing a
uniform and appropriate range of
volume to meet the telephone needs of
consumers. Such consultation and
testing shall occur by [ONE YEAR
AFTER THE EFFECTIVE DATE OF THE
FINAL RULE], pursuant to paragraph (j)
of this section, with follow-up every
three years thereafter to assess the
impact of these technological changes.
■ 14. Amend § 68.320 by revising
paragraph (e) to read as follows:
§ 68.320 Supplier’s Declaration of
Conformity.
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(e) No person shall use or make
reference to a Supplier’s Declaration of
Conformity in a deceptive or misleading
manner or to convey the impression that
such a Supplier’s Declaration of
Conformity reflects more than a
determination by the responsible party
that the device or product has been
shown to be capable of complying with
the applicable technical.
■ 15. Amend § 68.324 by adding
paragraphs (e) introductory text and (g)
to read as follows:
§ 68.324 Supplier’s Declaration of
Conformity requirements.
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(e) For terminal equipment that is
directly connected to the public
switched telephone network:
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*
*
*
*
(g) For ACS telephonic CPE subject to
a Supplier’s Declaration of Conformity,
the responsible party shall make a copy
of the Supplier’s Declaration of
Conformity freely available to the
general public on its company Web site.
[FR Doc. 2015–31368 Filed 12–24–15; 8:45 am]
BILLING CODE 6712–01–P
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
Surface Transportation Board.
Notice of proposed rulemaking.
AGENCY:
ACTION:
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 efiling 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 ‘‘https://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
SUMMARY:
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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
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
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.
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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)(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)(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.
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
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
2 Amtrak Complaint, NOR 42134, at 2 (Jan. 19,
2012).
3 Amtrak Complaint, NOR 42141, at 2 (Nov. 17,
2014).
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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 ontime 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)
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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.
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 ‘‘ontime’’ train may arrive at its final
terminus for each distance-variable
band.
Distance operated
(miles)
Over
0 ................
100 ............
200 ............
300 ............
400 ............
500 ............
Up to and
including
100
200
300
400
500
No limit
Maximum
allowance
(minutes)
5
10
15
20
25
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 on4 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 ontime performance.
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time performance for purposes of filing
or initiating a complaint. As proposed
in Section 1040.4, Calculation of
Quarterly On-Time Performance, ontime 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.
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
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.
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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 ontime 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
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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.
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).
§ 1040.1
§ 1040.2
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 ontime performance records, and system timetable, all
of which are available on Amtrak’s Web site.
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
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 § 1040.3.
§ 1040.3
6 Under
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).
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)
Over
0 ................
100 ............
E:\FR\FM\28DEP1.SGM
28DEP1
Up to and
including
100
200
Maximum
allowance
(minutes)
5
10
Federal Register / Vol. 80, No. 248 / Monday, December 28, 2015 / Proposed Rules
Distance operated
(miles)
Up to and
including
Over
200
300
400
500
............
............
............
............
Maximum
allowance
(minutes)
300
400
500
No limit
15
20
25
30
§ 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 §§ 1040.2 and 1040.3.
[FR Doc. 2015–32411 Filed 12–24–15; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 150924885–5999–01]
RIN 0648–BF38
International Fisheries; Pacific Tuna
Fisheries; Fishing Restrictions for the
Area of Overlap Between the
Convention Areas of the InterAmerican Tropical Tuna Commission
and the Western and Central Pacific
Fisheries Commission
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS hereby proposes
regulations under the Tuna Conventions
Act to implement Recommendation C–
12–11 of the Inter-American Tropical
Tuna Commission (IATTC).
Recommendation C–12–11 revises the
management regime for the area of
overlapping jurisdiction between the
IATTC and the Commission for the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
(WCPFC). These proposed regulations
provide that the management measures
of the IATTC would no longer apply in
mstockstill on DSK4VPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
13:06 Dec 24, 2015
Jkt 238001
the area of overlapping jurisdiction,
with the exception of regulations
governing the IATTC Regional Vessel
Register. This action is necessary for the
United States to satisfy its obligations as
a member of the IATTC.
Comments on the proposed rule
and supporting documents must be
submitted in writing by January 27,
2016.
DATES:
You may submit comments
on this document, identified by NOAA–
NMFS–2015–0158, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov/#!docket
Detail;D=NOAA-NMFS-2015-0158, click
the ‘‘Comment Now!’’ icon, complete
the required fields, and enter or attach
your comments.
• Mail: Submit written comments to
Rachael Wadsworth, NMFS West Coast
Region Long Beach Office, 501 W.
Ocean Blvd., Suite 4200, Long Beach,
CA 90802. Include the identifier
‘‘NOAA–NMFS–2015–0158’’ in the
comments.
Instructions: Comments must be
submitted by one of the above methods
to ensure they are received,
documented, and considered by NMFS.
Comments sent by any other method, to
any other address or individual, or
received after the end of the comment
period, may not be considered. All
comments received are a part of the
public record and will generally be
posted for public viewing on
www.regulations.gov without change.
All personal identifying information
(e.g., name, address, etc.) submitted
voluntarily by the sender will be
publicly accessible. Do not submit
confidential business information, or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous).
Copies of the draft Regulatory Impact
Review and other supporting documents
are available via the Federal
eRulemaking Portal: https://
www.regulations.gov, docket NOAA–
NMFS–2015–0158 or by contacting the
Regional Administrator, William W.
Stelle, Jr., NMFS West Coast Region,
7600 Sand Point Way, NE., Bldg 1,
Seattle, WA 98115–0070, or Regional
Administrator.WCRHMS@noaa.gov.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Rachael Wadsworth, NMFS, West Coast
Region, 562–980–4036.
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
80741
Background on the IATTC
The United States is a member of the
IATTC, which was established under
the 1949 Convention for the
Establishment of an Inter-American
Tropical Tuna Commission. The full
text of the 1949 Convention is available
at: https://www.iattc.org/PDFFiles/
IATTC_convention_1949.pdf.
The IATTC consists of 21 member
nations and four cooperating nonmember nations and facilitates scientific
research into, as well as the
conservation and management of, highly
migratory species of fish in the IATTC
Convention Area. The IATTC
Convention Area is defined as waters of
the eastern Pacific Ocean (EPO) within
the area bounded by the west coast of
the Americas and by 50° N. latitude,
150° W. longitude, and 50° S. latitude.
The IATTC has maintained a scientific
research and fishery monitoring
program for many years, and regularly
assesses the status of tuna and billfish
stocks in the EPO to determine
appropriate catch limits and other
measures deemed necessary to promote
sustainable fisheries and prevent the
overexploitation of these stocks.
International Obligations of the United
States Under the Convention
As a Contracting Party to the 1949
Convention and a member of the IATTC,
the United States is legally bound to
implement decisions of the IATTC. The
Tuna Conventions Act (16 U.S.C. 951–
962), as amended on November 5, 2015,
by Title II of Public Law 114–81,
provides that the Secretary of
Commerce, in consultation with the
Secretary of State and, with respect to
enforcement measures, the Secretary of
the Department of Homeland Security,
may promulgate such regulations as
may be necessary to carry out the
United States international obligations
under the Convention, including
recommendations and decisions
adopted by the IATTC. The Secretary’s
authority to promulgate such
regulations has been delegated to
NMFS.
Area of Overlap Recommendation
In 2004, the Convention on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
entered into force. The Convention’s
area of application (WCPFC Convention
Area) overlaps with the IATTC
Convention Area. The two convention
areas overlap in the Pacific Ocean
waters within a rectangular area
bounded by 50° S. latitude, 150° W.
E:\FR\FM\28DEP1.SGM
28DEP1
]]>Agencies
[Federal Register Volume 80, Number 248 (Monday, December 28, 2015)]
[Proposed Rules]
[Pages 80737-80741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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
``https://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
