Wisconsin Central, Ltd.-Petition for Declaratory Order-Interchange With Soo Line Railroad Company, 64304-64306 [2022-23021]
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Provided no formal expression of
intent to file an offer of financial
assistance (OFA) has been received,2
this exemption will be effective on
November 23, 2022,3 unless stayed
pending reconsideration. Petitions to
stay that do not involve environmental
issues,4 formal expressions of intent to
file an OFA under 49 CFR 1152.27(c)(2),
and interim trail use/rail banking
requests under 49 CFR 1152.29 must be
filed by November 3, 2022.5 Petitions to
reopen and requests for public use
conditions under 49 CFR 1152.28 must
be filed by November 14, 2022.
All pleadings, referring to Docket No.
AB 603 (Sub–No. 5X), must be filed
with the Surface Transportation Board
either via e-filing on the Board’s website
or in writing addressed to 395 E Street
SW, Washington, DC 20423–0001. In
addition, a copy of each pleading must
be served on V&S’s representative, Eric
M. Hocky, Clark Hill, PLC, Two
Commerce Square, 2001 Market St.,
Suite 2620, Philadelphia, PA 19103.
If the verified notice contains false or
misleading information, the exemption
is void ab initio.
V&S has filed a combined
environmental and historic report that
addresses the potential effects, if any, of
the abandonment on the environment
and historic resources. OEA will issue a
Draft Environmental Assessment (Draft
EA) by October 28, 2022. The Draft EA
will be available to interested persons
on the Board’s website, by writing to
OEA, or by calling OEA at (202) 245–
0294. Assistance for the hearing
impaired is available through the
Federal Relay Service at (800) 877–8339.
Comments on environmental or historic
preservation matters must be filed
within 15 days after the Draft EA
becomes available to the public.
Environmental, historic preservation,
public use, or trail use/rail banking
2 Persons interested in submitting an OFA must
first file a formal expression of intent to file an
offer, indicating the type of financial assistance they
wish to provide (i.e., subsidy or purchase) and
demonstrating that they are preliminarily
financially responsible. See 49 CFR 1152.27(c)(2)(i).
3 V&S states that it intends to consummate the
abandonment of the Line on or after November 17,
2022. V&S may not abandon the Line before the
exemption becomes effective.
4 The Board will grant a stay if an informed
decision on environmental issues (whether raised
by a party or by the Board’s Office of Environmental
Analysis (OEA) in its independent investigation)
cannot be made before the exemption’s effective
date. See Exemption of Out-of-Serv. Rail Lines, 5
I.C.C.2d 377 (1989). Any request for a stay should
be filed as soon as possible so that the Board may
take appropriate action before the exemption’s
effective date.
5 Filing fees for OFAs and trail use requests can
be found at 49 CFR 1002.2(f)(25) and (27),
respectively.
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conditions will be imposed, where
appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR
1152.29(e)(2), V&S shall file a notice of
consummation with the Board to signify
that it has exercised the authority
granted and fully abandoned the Line. If
consummation has not been effected by
V&S’s filing a notice of consummation
by October 24, 2023, and there are no
legal or regulatory barriers to
consummation, the authority to
abandon will automatically expire.
Board decisions and notices are
available at www.stb.gov.
Decided: October 19, 2022.
By the Board, Mai T. Dinh, Director, Office
of Proceedings.
Regena Smith-Bernard,
Clearance Clerk.
[FR Doc. 2022–23069 Filed 10–21–22; 8:45 am]
BILLING CODE 4915–01–P
SURFACE TRANSPORTATION BOARD
[Docket No. FD 36397]
Wisconsin Central, Ltd.—Petition for
Declaratory Order—Interchange With
Soo Line Railroad Company
This proceeding derives from an April
14, 2020 petition for declaratory order
filed by Wisconsin Central, Ltd. (CN),
regarding the interchange of traffic from
Soo Line Railroad Company (CP) to CN
in the Chicago, Ill., area. On October 30,
2020, the Board served a decision
denying the relief sought by the
petition. CN appealed the Board’s
decision to the United States Court of
Appeals for the Seventh Circuit, which
vacated the Board’s decision and
remanded the matter to the Board.
On February 2, 2022, CN filed a postremand brief. CP moved to strike CN’s
post-remand brief on February 14, 2022,
and later filed a separate reply to it.
Thereafter, CN filed a reply to CP’s
reply, which CP then asked the Board to
reject.
For the reasons explained below, the
Board will deny CP’s motion to strike
CN’s post-remand brief and CP’s request
to reject CN’s reply to reply. The Board
also will solicit comments from
stakeholders and other interested
persons on the issues presented in this
proceeding.
Background
From 2010 to 2019, CP and CN mainly
interchanged Chicago-area traffic at
Spaulding,1 near Bartlett, Ill. Soo Line
1 CN states that during that time, some traffic,
especially toxic-by-inhalation hazardous materials,
was moved by the parties to Clearing Yard, owned
by the Belt Railway of Chicago, for interchange. (CN
Post-Remand Brief 1, 4.)
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R.R.—Pet. for Declaratory Ord. & Prelim.
Inj.—Interchange with Canadian Nat’l,
FD 36299, slip op. at 1–2 (STB served
Nov. 29, 2019). However, in 2019 CN
sought to move the Spaulding
interchange traffic elsewhere. Id. at 1–2.
CN first designated Kirk Yard in Gary,
Ind., but CP objected and sought relief
from the Board, requesting that the
Board order CN to continue to receive
CP cars at Spaulding unless a
replacement location was agreed upon
or the Board prescribed a replacement
location. Id. at 2. Pending the Board’s
decision regarding Kirk Yard in Docket
No. 36299, the parties signed an interim
agreement in August 2019 in which they
agreed to move the Spaulding
interchange traffic to Clearing Yard
(Clearing), owned by the Belt Railway of
Chicago (BRC).2 Id. at 2–3.
Subsequently, the Board concluded that
CN could not designate Kirk Yard for
interchange with CP because it was not
a reasonable interchange location, while
also declining to address the
reasonableness of interchange at
Clearing. Id. at 3–4, 7.
On April 14, 2020, CN filed a petition
for a declaratory order seeking a ruling
under 49 U.S.C. 10742, which states:
A rail carrier providing transportation
subject to the jurisdiction of the Board under
this part shall provide reasonable, proper,
and equal facilities that are within its power
to provide for the interchange of traffic
between, and for the receiving, forwarding,
and delivering of passengers and property to
and from, its respective line and a connecting
line of another rail carrier or of a water
carrier providing transportation subject to
chapter 137.
CN asked the Board to declare that: (1)
CN may designate Clearing to receive
interchange traffic from CP; and (2) each
railroad must bear its own costs for
those interchanges, including payment
by the delivering carrier of BRC’s
switching fees. (Pet. 1, 3–4.) By decision
served on October 30, 2020, the Board
held that CN could not unilaterally
designate Clearing as the interchange
point and it therefore was not necessary
to reach the issue of whether CN and CP
must bear their own costs. Wis. Cent.
Ltd.—Pet. for Declaratory Ord.—
Interchange with Soo Line R.R., FD
36397, slip op. at 4 (STB served Oct. 30,
2020). The Board found that, pursuant
to precedent, when two carriers
physically intersect, the receiving
carrier is required to designate a point
on its own line where it will receive
traffic and to provide a free route over
its tracks to that point but that when the
2 CN, CP, and four other Class I railroads are coowners of BRC. Wis. Cent. Ltd., FD 36397, slip op.
at 1 n.2.
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carriers do not physically intersect, the
receiving carrier has neither the right
nor the obligation to designate an
interchange point. Id. at 5. Accordingly,
the Board held that if CP’s and CN’s
lines physically intersected, CN was
required to designate an interchange
point on its own line and provide a free
route for CP to travel to that point, but
if the lines did not physically intersect,
section 10742 would not apply and the
case would be moot. Id. at 6–7, 9. In
doing so, the Board rejected CN’s
argument that the language of section
10742 permitted CN to designate
Clearing as the interchange based on
CN’s status as co-owner of BRC, which
does intersect with CP at Clearing. Id. at
7. The Board reasoned that CN and BRC
were distinct entities and, by
designating a third party’s rail line as
the interchange point and forcing CP to
pay a switching fee, CN would not be
‘‘providing’’ interchange facilities that
are within its ‘‘power to provide’’ as
required by section 10742. Id. at 7–8, 10.
The United States Court of Appeals
for the Seventh Circuit vacated the
Board’s October 30, 2020 decision and
remanded the matter to the Board. Wis.
Cent. Ltd. v. STB, 20 F.4th 292 (7th Cir.
2021). The court held that the Board
erred in interpreting section 10742 by:
(1) concluding that carriers only have
the ‘‘power to provide’’ facilities that
they own; (2) finding that section 10742
only applies if two carriers physically
intersect, (3) conflating an assumption
about who pays the fees of a third-party
carrier with the question of ‘‘whether a
receiving carrier [can] ever designate a
willing third party to receive traffic on
its behalf’’; and (4) relying on a
‘‘common-law norm’’ that a delivering
railroad cannot compel a receiving
railroad to exercise a voluntary
contractual right to receive traffic on the
line of a third party carrier. Id. at 294–
95. The court also indicated that the
word ‘‘reasonable’’ in section 10742
gives the Board interpretive leeway that
the statutory phrase ‘‘that are within its
power to provide’’ does not. Id. at 295.
CN filed a post-remand brief on
February 2, 2022, arguing that the sole
remaining issue in the case is whether
CP should be required to pay BRC’s
switching fees for interchange traffic
that CP will deliver to Clearing Yard.
(CN Post-Remand Brief 1.) CN asserts
the answer is yes, both under the BRC
operating agreement and because
requiring CP to pay would be fair and
consistent with industry practice. (Id.)
On February 14, 2022, CP filed a motion
to strike CN’s post-remand brief. CP
argues that the Board has not directed
the parties to file post-remand briefs,
and it is for the Board, not CN, to decide
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exercising its authority to set procedures
in this remand proceeding, and the
acceptance of CN’s briefs will not
interfere with those procedures or
prejudice any party. In addition, to
develop a more complete record, the
Board invites CN, CP and any other rail
carriers and other interested parties to
file comments, as outlined below.
Given the Seventh Circuit’s
discussion of the Board’s reliance on
agency precedent and industry practice
as summarized above, a post-remand
decision resolving the dispute between
CN and CP has the potential to
significantly alter such precedent and
practices regarding the interchange of
rail traffic. Because the resulting
interpretation of section 10742 by the
Board could have wide-reaching
consequences for the rail industry, the
Board is soliciting input from
stakeholders and other interested
persons. Input from a wider variety of
industry participants will give the Board
a better sense of the potential impacts of
different approaches and enable it to
make a more informed decision.
Accordingly, the Board invites
interested parties to comment on the
broader legal issues presented by this
declaratory order proceeding.
Specifically, commenters are invited to
address any or all of the following
issues:
1. How a carrier’s obligations under
49 U.S.C. 10742 to ‘‘provide reasonable,
proper, and equal facilities that are
within its power to provide’’ should be
understood in light of the decision by
the United States Court of Appeals for
Discussion and Conclusions
the Seventh Circuit, as well as the
impact of that decision on existing ICC
The Board does not have specific
and Board precedent and current carrier
regulations or procedures for cases
practices.
following a judicial remand. While
2. Whether the Board can consider the
parties often do not file post-remand
costs to each railroad of using a
briefs without a directive from the
particular interchange location
Board or a petition for leave to file a
designated by one carrier when
brief, the Board will accept CN’s postdetermining whether interchange
remand brief and its April 20, 2022
reply brief because striking them would facilities are ‘‘reasonable’’ under section
10742 and, if so, whether the Board can
not serve a useful purpose. CP cites to
allocate such costs between delivering
Western Fuels Association v. BNSF
Railway, NOR 42088 (STB served Feb. 1, and receiving railroads when resolving
section 10742 disputes. If commenters
2011), for the proposition that
believe that the Board may consider
unilaterally filing comments in a
costs as part of a reasonableness
remand proceeding has been deemed
determination under section 10742,
inappropriate by the Board. (CP Mot. to
commenters should address how the
Strike 1–2.) In that case, however, the
Board should consider costs and/or the
Board did not state that the filing was
allocation of costs in making such a
inappropriate, and it accepted the
determination.
comments into the record. W. Fuels
3. Whether the Board has authority
Ass’n, NOR 42088, slip op. at 2–3. CP
under any other statutory provision(s) to
also argues that CN’s filing improperly
resolve a dispute regarding the costs
arrogated the Board’s authority to
associated with an interchange location
decide what action and procedures
should be followed on remand. (CP Mot. and how the Board should apply any
such statutory authority.
to Strike 2.) However, the Board is now
what procedures to follow on remand.
(CP Mot. to Strike 1–2.) CP further
argues that CN’s post-remand brief
improperly asserts that the sole
remaining issue on remand is whether
CP must pay the BRC switching fees for
CN-bound traffic that CP delivers to
Clearing. (Id. at 2.) CP claims that the
court did not consider or address
whether CN’s proffer of Clearing Yard
satisfied its statutory obligation under
section 10742 to ‘‘provide reasonable,
proper, and equal facilities that are
within its power to provide.’’ (Id. at 3.)
CP also asserts that the court did not
reach the question of whether CN may
require CP to exercise its permissive
trackage rights to deliver its traffic to CN
at Clearing Yard. (Id.) CP requests that
the Board strike CN’s post-remand brief
from the record, set a procedural
schedule for initial briefs and reply
briefs, and identify what issues should
be addressed in the briefs. (Id. at 4.) On
March 21, 2022, CP filed a reply to CN’s
post-remand brief. On April 20, 2022,
CN filed a reply to CP’s reply and a
motion for leave to file a reply to a
reply. On April 25, 2022, the Commuter
Rail Division of the Regional
Transportation Authority d/b/a Metra
(Metra) filed comments and a motion for
leave to file comments out of time. On
May 10, 2022, CP filed a reply to CN’s
April 20, 2022 reply requesting that the
Board reject CN’s reply because the
Board has not authorized additional
post-remand briefing and because CN’s
submission was filed nearly a month
after CP’s reply. (CP Reply 1, May 10,
2022.)
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Federal Register / Vol. 87, No. 204 / Monday, October 24, 2022 / Notices
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4. How the statutory term
‘‘reasonable’’ should be interpreted.
5. How the interests of delivering and
receiving carriers should be balanced in
the selection of an interchange location,
particularly where the existing
interchange location is well established
or long-standing.
6. How a carrier’s ‘‘power to provide’’
facilities relates to the other carrier’s
ability or rights to reach those facilities.
7. Generally what procedures and
factors should apply when railroads
cannot agree on an interchange location
or one carrier unilaterally seeks to move
an existing interchange location.3
8. Whether and how any changes a
party recommends regarding the Board’s
interpretation of section 10742 should
affect the Board’s interpretation of other
statutory provisions and related
precedent (e.g., 49 U.S.C. 10705(a)(2)
and related precedent).
The Board recognizes that CN and CP
have an interest in resolving their
dispute in a timely manner. However, in
light of the court’s decision, because
resolution of their dispute could
potentially have a significant impact on
the rail industry at large and because the
industry will likely have insight
regarding how any particular standard
for designating interchange locations
will impact rail operations, the Board
believes that the delay necessary to
obtain input from other stakeholders is
warranted. Following the receipt of
comments, the Board intends to work
expeditiously to issue a decision. As
always, the Board encourages the parties
to settle their dispute privately without
further Board action if possible.
Comments must be filed by December
19, 2022 and reply comments must be
filed by January 17, 2023. To provide
interested parties with notice of the
opportunity to submit comments in this
proceeding, this decision will be
published in the Federal Register.
It is ordered:
1. CP’s motion to strike CN’s postremand brief and request to reject CN’s
April 20, 2022 reply are denied.
2. CN’s motion for leave to file a reply
to a reply is granted.
3 As discussed above, CN, CP, and Metra have
each already filed briefs or comments following the
remand. In the interest of compiling a complete
record, all post-remand briefs and comments filed
to date will be accepted. In addition, parties that
have already filed post-remand briefs or comments
may also file initial comments and reply comments
as requested by this decision. All comments should
be limited to the broader legal issues discussed
above and should not address the specific facts of
this case; following the comments and replies
permitted in this decision, CP and CN will be
afforded an opportunity to further brief the
application of the issues discussed to the facts of
this case.
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3. Metra’s motion for leave to file
comments out of time is granted.
4. Interested parties may submit
comments by December 19, 2022.
Replies to those comments are due by
January 17, 2023.
5. This decision will be published in
the Federal Register.
6. This decision is effective on its
service date.
Decided: October 18, 2022.
By the Board, Board Members Fuchs,
Hedlund, Oberman, Primus, and Schultz.
Aretha Laws-Byrum,
Clearance Clerk.
[FR Doc. 2022–23021 Filed 10–21–22; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
Maritime Administration
U.S. Maritime Transportation System
National Advisory Committee; Notice
of Public Meeting
Maritime Administration,
Department of Transportation.
ACTION: Notice of public meeting.
AGENCY:
The Maritime Administration
(MARAD) announces a public meeting
of the U.S. Maritime Transportation
System National Advisory Committee
(MTSNAC) to develop and discuss
advice and recommendations for the
U.S. Department of Transportation on
issues related to the marine
transportation system.
DATES: The meeting will be held on
Tuesday, November 29, 2022, from 9:00
a.m. to 4:30 p.m. and Wednesday,
November 30, 2022, from 9:00 a.m. to
4:30 p.m. Eastern Daylight Time (EDT).
Requests to attend the meeting must
be received no later than 5:00 p.m. EDT
on the prior week Monday, November
21, 2022, in order to facilitate entry.
Requests for accommodations to a
disability must be received by the day
prior to the meeting Monday, November
28, 2022. Those requesting to speak
during the public comment period of
the meeting must submit a written copy
of their remarks to DOT by no later than
by the prior week Monday, November
21, 2022. Requests to submit written
materials to be reviewed during the
meeting must also be received by the
prior week Monday, November 21,
2022.
SUMMARY:
The meeting will be held at
the DOT Conference Center located at
1200 New Jersey Ave. SE, Washington,
DC 20590. Any Committee related
request should be sent to the person
listed in the following section.
ADDRESSES:
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FOR FURTHER INFORMATION CONTACT:
Chad Dorsey, Designated Federal
Officer, at MTSNAC@dot.gov or at (202)
997–6205. Maritime Transportation
System National Advisory Committee,
1200 New Jersey Avenue SE, W21–307,
Washington, DC 20590. Please visit the
MTSNAC website at https://
www.maritime.dot.gov/outreach/
maritime-transportation-system-mts/
maritime-transportation-systemnational-advisory-0.
SUPPLEMENTARY INFORMATION:
Background
The MTSNAC is a Federal advisory
committee that advises the U.S.
Secretary of Transportation through the
Maritime Administrator on issues
related to the maritime transportation
system. The MTSNAC was established
in 1999 and mandated in 2007 by the
Energy Independence and Security Act
of 2007 (Pub. L. 110–140). The
MTSNAC is codified at 46 U.S.C. 50402
and operates in accordance with the
provisions of the Federal Advisory
Committee Act.
Agenda
The agenda will include: (1) welcome,
opening remarks, and introductions; (2)
administrative items; (3) subcommittee
break-out sessions; (4) updates to the
Committee on the subcommittee work;
(5) public comments; and (6)
discussions relevant to formulate
recommendations for to the Secretary. A
final agenda will be posted on the
MTSNAC internet website at https://
www.maritime.dot.gov/outreach/
maritime-transportation-system-mts/
maritime-transportation-systemnational-advisory-0 at least one week in
advance of the meeting.
Public Participation
The meeting will be open to the
public. Members of the public who wish
to attend in person must RSVP to the
person listed in the FOR FURTHER
INFORMATION CONTACT section with your
name and affiliation. Seating will be
limited and available on a first-comefirst-serve basis.
Services for individuals with
disabilities: The public meeting is
physically accessible to people with
disabilities. The U.S. Department of
Transportation is committed to
providing all participants equal access
to this meeting. If you need alternative
formats or services because of a
disability, such as sign language,
interpretation, or other ancillary aids,
please contact the person listed in the
FOR FURTHER INFORMATION CONTACT
section.
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[Federal Register Volume 87, Number 204 (Monday, October 24, 2022)]
[Notices]
[Pages 64304-64306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23021]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36397]
Wisconsin Central, Ltd.--Petition for Declaratory Order--
Interchange With Soo Line Railroad Company
This proceeding derives from an April 14, 2020 petition for
declaratory order filed by Wisconsin Central, Ltd. (CN), regarding the
interchange of traffic from Soo Line Railroad Company (CP) to CN in the
Chicago, Ill., area. On October 30, 2020, the Board served a decision
denying the relief sought by the petition. CN appealed the Board's
decision to the United States Court of Appeals for the Seventh Circuit,
which vacated the Board's decision and remanded the matter to the
Board.
On February 2, 2022, CN filed a post-remand brief. CP moved to
strike CN's post-remand brief on February 14, 2022, and later filed a
separate reply to it. Thereafter, CN filed a reply to CP's reply, which
CP then asked the Board to reject.
For the reasons explained below, the Board will deny CP's motion to
strike CN's post-remand brief and CP's request to reject CN's reply to
reply. The Board also will solicit comments from stakeholders and other
interested persons on the issues presented in this proceeding.
Background
From 2010 to 2019, CP and CN mainly interchanged Chicago-area
traffic at Spaulding,\1\ near Bartlett, Ill. Soo Line R.R.--Pet. for
Declaratory Ord. & Prelim. Inj.--Interchange with Canadian Nat'l, FD
36299, slip op. at 1-2 (STB served Nov. 29, 2019). However, in 2019 CN
sought to move the Spaulding interchange traffic elsewhere. Id. at 1-2.
CN first designated Kirk Yard in Gary, Ind., but CP objected and sought
relief from the Board, requesting that the Board order CN to continue
to receive CP cars at Spaulding unless a replacement location was
agreed upon or the Board prescribed a replacement location. Id. at 2.
Pending the Board's decision regarding Kirk Yard in Docket No. 36299,
the parties signed an interim agreement in August 2019 in which they
agreed to move the Spaulding interchange traffic to Clearing Yard
(Clearing), owned by the Belt Railway of Chicago (BRC).\2\ Id. at 2-3.
Subsequently, the Board concluded that CN could not designate Kirk Yard
for interchange with CP because it was not a reasonable interchange
location, while also declining to address the reasonableness of
interchange at Clearing. Id. at 3-4, 7.
---------------------------------------------------------------------------
\1\ CN states that during that time, some traffic, especially
toxic-by-inhalation hazardous materials, was moved by the parties to
Clearing Yard, owned by the Belt Railway of Chicago, for
interchange. (CN Post-Remand Brief 1, 4.)
\2\ CN, CP, and four other Class I railroads are co-owners of
BRC. Wis. Cent. Ltd., FD 36397, slip op. at 1 n.2.
---------------------------------------------------------------------------
On April 14, 2020, CN filed a petition for a declaratory order
seeking a ruling under 49 U.S.C. 10742, which states:
A rail carrier providing transportation subject to the
jurisdiction of the Board under this part shall provide reasonable,
proper, and equal facilities that are within its power to provide
for the interchange of traffic between, and for the receiving,
forwarding, and delivering of passengers and property to and from,
its respective line and a connecting line of another rail carrier or
of a water carrier providing transportation subject to chapter 137.
CN asked the Board to declare that: (1) CN may designate Clearing
to receive interchange traffic from CP; and (2) each railroad must bear
its own costs for those interchanges, including payment by the
delivering carrier of BRC's switching fees. (Pet. 1, 3-4.) By decision
served on October 30, 2020, the Board held that CN could not
unilaterally designate Clearing as the interchange point and it
therefore was not necessary to reach the issue of whether CN and CP
must bear their own costs. Wis. Cent. Ltd.--Pet. for Declaratory Ord.--
Interchange with Soo Line R.R., FD 36397, slip op. at 4 (STB served
Oct. 30, 2020). The Board found that, pursuant to precedent, when two
carriers physically intersect, the receiving carrier is required to
designate a point on its own line where it will receive traffic and to
provide a free route over its tracks to that point but that when the
[[Page 64305]]
carriers do not physically intersect, the receiving carrier has neither
the right nor the obligation to designate an interchange point. Id. at
5. Accordingly, the Board held that if CP's and CN's lines physically
intersected, CN was required to designate an interchange point on its
own line and provide a free route for CP to travel to that point, but
if the lines did not physically intersect, section 10742 would not
apply and the case would be moot. Id. at 6-7, 9. In doing so, the Board
rejected CN's argument that the language of section 10742 permitted CN
to designate Clearing as the interchange based on CN's status as co-
owner of BRC, which does intersect with CP at Clearing. Id. at 7. The
Board reasoned that CN and BRC were distinct entities and, by
designating a third party's rail line as the interchange point and
forcing CP to pay a switching fee, CN would not be ``providing''
interchange facilities that are within its ``power to provide'' as
required by section 10742. Id. at 7-8, 10.
The United States Court of Appeals for the Seventh Circuit vacated
the Board's October 30, 2020 decision and remanded the matter to the
Board. Wis. Cent. Ltd. v. STB, 20 F.4th 292 (7th Cir. 2021). The court
held that the Board erred in interpreting section 10742 by: (1)
concluding that carriers only have the ``power to provide'' facilities
that they own; (2) finding that section 10742 only applies if two
carriers physically intersect, (3) conflating an assumption about who
pays the fees of a third-party carrier with the question of ``whether a
receiving carrier [can] ever designate a willing third party to receive
traffic on its behalf''; and (4) relying on a ``common-law norm'' that
a delivering railroad cannot compel a receiving railroad to exercise a
voluntary contractual right to receive traffic on the line of a third
party carrier. Id. at 294-95. The court also indicated that the word
``reasonable'' in section 10742 gives the Board interpretive leeway
that the statutory phrase ``that are within its power to provide'' does
not. Id. at 295.
CN filed a post-remand brief on February 2, 2022, arguing that the
sole remaining issue in the case is whether CP should be required to
pay BRC's switching fees for interchange traffic that CP will deliver
to Clearing Yard. (CN Post-Remand Brief 1.) CN asserts the answer is
yes, both under the BRC operating agreement and because requiring CP to
pay would be fair and consistent with industry practice. (Id.) On
February 14, 2022, CP filed a motion to strike CN's post-remand brief.
CP argues that the Board has not directed the parties to file post-
remand briefs, and it is for the Board, not CN, to decide what
procedures to follow on remand. (CP Mot. to Strike 1-2.) CP further
argues that CN's post-remand brief improperly asserts that the sole
remaining issue on remand is whether CP must pay the BRC switching fees
for CN-bound traffic that CP delivers to Clearing. (Id. at 2.) CP
claims that the court did not consider or address whether CN's proffer
of Clearing Yard satisfied its statutory obligation under section 10742
to ``provide reasonable, proper, and equal facilities that are within
its power to provide.'' (Id. at 3.) CP also asserts that the court did
not reach the question of whether CN may require CP to exercise its
permissive trackage rights to deliver its traffic to CN at Clearing
Yard. (Id.) CP requests that the Board strike CN's post-remand brief
from the record, set a procedural schedule for initial briefs and reply
briefs, and identify what issues should be addressed in the briefs.
(Id. at 4.) On March 21, 2022, CP filed a reply to CN's post-remand
brief. On April 20, 2022, CN filed a reply to CP's reply and a motion
for leave to file a reply to a reply. On April 25, 2022, the Commuter
Rail Division of the Regional Transportation Authority d/b/a Metra
(Metra) filed comments and a motion for leave to file comments out of
time. On May 10, 2022, CP filed a reply to CN's April 20, 2022 reply
requesting that the Board reject CN's reply because the Board has not
authorized additional post-remand briefing and because CN's submission
was filed nearly a month after CP's reply. (CP Reply 1, May 10, 2022.)
Discussion and Conclusions
The Board does not have specific regulations or procedures for
cases following a judicial remand. While parties often do not file
post-remand briefs without a directive from the Board or a petition for
leave to file a brief, the Board will accept CN's post-remand brief and
its April 20, 2022 reply brief because striking them would not serve a
useful purpose. CP cites to Western Fuels Association v. BNSF Railway,
NOR 42088 (STB served Feb. 1, 2011), for the proposition that
unilaterally filing comments in a remand proceeding has been deemed
inappropriate by the Board. (CP Mot. to Strike 1-2.) In that case,
however, the Board did not state that the filing was inappropriate, and
it accepted the comments into the record. W. Fuels Ass'n, NOR 42088,
slip op. at 2-3. CP also argues that CN's filing improperly arrogated
the Board's authority to decide what action and procedures should be
followed on remand. (CP Mot. to Strike 2.) However, the Board is now
exercising its authority to set procedures in this remand proceeding,
and the acceptance of CN's briefs will not interfere with those
procedures or prejudice any party. In addition, to develop a more
complete record, the Board invites CN, CP and any other rail carriers
and other interested parties to file comments, as outlined below.
Given the Seventh Circuit's discussion of the Board's reliance on
agency precedent and industry practice as summarized above, a post-
remand decision resolving the dispute between CN and CP has the
potential to significantly alter such precedent and practices regarding
the interchange of rail traffic. Because the resulting interpretation
of section 10742 by the Board could have wide-reaching consequences for
the rail industry, the Board is soliciting input from stakeholders and
other interested persons. Input from a wider variety of industry
participants will give the Board a better sense of the potential
impacts of different approaches and enable it to make a more informed
decision.
Accordingly, the Board invites interested parties to comment on the
broader legal issues presented by this declaratory order proceeding.
Specifically, commenters are invited to address any or all of the
following issues:
1. How a carrier's obligations under 49 U.S.C. 10742 to ``provide
reasonable, proper, and equal facilities that are within its power to
provide'' should be understood in light of the decision by the United
States Court of Appeals for the Seventh Circuit, as well as the impact
of that decision on existing ICC and Board precedent and current
carrier practices.
2. Whether the Board can consider the costs to each railroad of
using a particular interchange location designated by one carrier when
determining whether interchange facilities are ``reasonable'' under
section 10742 and, if so, whether the Board can allocate such costs
between delivering and receiving railroads when resolving section 10742
disputes. If commenters believe that the Board may consider costs as
part of a reasonableness determination under section 10742, commenters
should address how the Board should consider costs and/or the
allocation of costs in making such a determination.
3. Whether the Board has authority under any other statutory
provision(s) to resolve a dispute regarding the costs associated with
an interchange location and how the Board should apply any such
statutory authority.
[[Page 64306]]
4. How the statutory term ``reasonable'' should be interpreted.
5. How the interests of delivering and receiving carriers should be
balanced in the selection of an interchange location, particularly
where the existing interchange location is well established or long-
standing.
6. How a carrier's ``power to provide'' facilities relates to the
other carrier's ability or rights to reach those facilities.
7. Generally what procedures and factors should apply when
railroads cannot agree on an interchange location or one carrier
unilaterally seeks to move an existing interchange location.\3\
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\3\ As discussed above, CN, CP, and Metra have each already
filed briefs or comments following the remand. In the interest of
compiling a complete record, all post-remand briefs and comments
filed to date will be accepted. In addition, parties that have
already filed post-remand briefs or comments may also file initial
comments and reply comments as requested by this decision. All
comments should be limited to the broader legal issues discussed
above and should not address the specific facts of this case;
following the comments and replies permitted in this decision, CP
and CN will be afforded an opportunity to further brief the
application of the issues discussed to the facts of this case.
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8. Whether and how any changes a party recommends regarding the
Board's interpretation of section 10742 should affect the Board's
interpretation of other statutory provisions and related precedent
(e.g., 49 U.S.C. 10705(a)(2) and related precedent).
The Board recognizes that CN and CP have an interest in resolving
their dispute in a timely manner. However, in light of the court's
decision, because resolution of their dispute could potentially have a
significant impact on the rail industry at large and because the
industry will likely have insight regarding how any particular standard
for designating interchange locations will impact rail operations, the
Board believes that the delay necessary to obtain input from other
stakeholders is warranted. Following the receipt of comments, the Board
intends to work expeditiously to issue a decision. As always, the Board
encourages the parties to settle their dispute privately without
further Board action if possible.
Comments must be filed by December 19, 2022 and reply comments must
be filed by January 17, 2023. To provide interested parties with notice
of the opportunity to submit comments in this proceeding, this decision
will be published in the Federal Register.
It is ordered:
1. CP's motion to strike CN's post-remand brief and request to
reject CN's April 20, 2022 reply are denied.
2. CN's motion for leave to file a reply to a reply is granted.
3. Metra's motion for leave to file comments out of time is
granted.
4. Interested parties may submit comments by December 19, 2022.
Replies to those comments are due by January 17, 2023.
5. This decision will be published in the Federal Register.
6. This decision is effective on its service date.
Decided: October 18, 2022.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz.
Aretha Laws-Byrum,
Clearance Clerk.
[FR Doc. 2022-23021 Filed 10-21-22; 8:45 am]
BILLING CODE 4915-01-P
