65FR37205A Union Pacific Railroad Company--Petition for Declaratory Order-- Imposed Interchange Charges
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Posting-number: Volume 65, Issue 114, Page 37205A
[Federal Register: June 13, 2000 (Volume 65, Number 114)]
[Notices]
[Page 37205-37206]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jn00-114]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Docket No. 42052]
Union Pacific Railroad Company--Petition for Declaratory Order--
Imposed Interchange Charges
AGENCY: Surface Transportation Board.
ACTION: Institution of declaratory order proceeding; request for
comments.
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SUMMARY: The Board is instituting a proceeding under 5 U.S.C. 554(e) to
resolve questions concerning the right of a rail carrier to impose
charges unilaterally against other carriers for events that may occur
when cars are interchanged.
DATES: Comments by or on behalf of all interested parties are due July
12, 2000. Replies are due August 1, 2000.
ADDRESSES: The original and 10 copies of comments referring to STB
Docket No. 42052 must be sent to: Surface Transportation Board, Office
of the Secretary, Case Control Unit, 1925 K Street, NW, Washington, DC
20423-0001, ATTN: STB Docket No. 42052.
In addition, send one copy of comments to: (1) Union Pacific
Railroad Company, Robert T. Opal, General Commerce Counsel, 1416 Dodge
Street, Room 830, Omaha, Nebraska 68179; (2) Iowa Interstate Railroad,
Ltd., Edward J. Krug, Krug & Beckelman, P.L.C., 401 First Street S.E.,
Suite 330, P.O. Box 186, Cedar Rapids, IA 52406-0186; (3) City of
Tacoma Public Utilities, d/b/a Tacoma Rail, Mark Bubenik, Chief
Assistant City Attorney, P.O. Box 11007, Tacoma, WA 98411-0007; (4)
Roger A. Serpe, General Counsel, Indiana Harbor Belt Railroad Company,
111 West Jackson Boulevard, Suite 1128, Chicago, Illinois 60604-3502;
and (5) William C. Sippel, Thomas J. Litwiler, Fletcher & Sippel LLC,
Two Prudential Plaza, Suite 3125, 180 North Stetson Avenue, Chicago,
Illinois 60601-6710.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: On February 14, 2000, Union Pacific Railroad
Company (UP or petitioner) filed a petition seeking a declaratory order
to resolve a dispute over the right of a rail carrier to impose charges
unilaterally against other carriers for events that may occur when cars
are interchanged. Replies to the petition have been filed by
respondents Indiana Harbor Belt Railroad Company (Indiana Harbor Belt),
Iowa Interstate Railroad, Ltd. (Iowa Interstate), and City of Tacoma,
Tacoma Public Utilities, d/b/a Tacoma Rail and Tacoma Beltline Railroad
(Tacoma Beltline) (collectively, respondents).
Specifically, UP seeks a declaration that, under 49 U.S.C. 11121, a
rail carrier may not unilaterally impose charges on another carrier for
interchange of cars, either by ``tariff'' or otherwise, and that
interchange-related charges imposed by one carrier on another must be
either permitted by agreement of the carriers involved or specifically
authorized by the Board. The controversy arises as a consequence of
``tariff'' provisions issued by respondents, pursuant to which charges
may be imposed when cars are not pulled from interchange within
[[Page 37206]]
specified times. UP asserts that such interchange matters are subject
to the Association of American Railroads' (AAR) Car Service and Car
Hire Agreement (Car Hire Agreement), unless the rail carriers enter
into agreements that differ from the Car Hire Agreement.
Respondents concur that a declaratory order is warranted, though
they disagree with UP as to the substance of such an order. Indiana
Harbor Belt assails UP's allegedly ``delinquent interchange practices
in the Chicago Switching District.'' Iowa Interstate defends its
charges as necessary to protect short line railroads against arbitrary
and unfair interchange practices of Class I railroads. Tacoma Beltline
asserts that UP's position constitutes anti-competitive conduct in
complete disregard of business operations.\1\ Iowa Interstate and
Tacoma Beltline rely on the decision of the court in Cincinnati, N.O. &
T.P. Ry. Co. v. Chesapeake & O. Ry. Co., 441 F.2d 483 (4th Cir. 1971),
for the proposition that AAR's car service rules do not prevent a
carrier from acting individually through a ``tariff'' charge to avoid
costs related to another railroad's malfeasance.
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\1\ Tacoma Beltline requested that the Board delay any ruling
until its lawsuit seeking interchange charges is resolved in City of
Tacoma, Tacoma Public Utilities v. Union Pacific Railroad Company,
Case No. C00-50548FDB, (W.D. Wash.) This request is moot, because in
an order dated April 20, 2000, the court dismissed the case without
prejudice, citing the Board's exclusive jurisdiction.
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Under 5 U.S.C. 554(e) and 49 U.S.C. 721, the Board has
discretionary authority to issue a declaratory order to terminate a
controversy or remove uncertainty. The Board and its predecessor, the
Interstate Commerce Commission (ICC), have exercised broad authority in
handling such requests. In determining whether to entertain such
petitions, the agency considers a number of factors, including the
significance to the industry, the ripeness of the controversy, and
whether a proceeding is necessary to terminate an active controversy.
The issues presented raise questions that would appear to have
broad and current applicability within the railroad industry, involving
significant interpretations of the statutory framework within which
that industry operates since enactment of the ICC Termination Act of
1995, Pub. L. No. 104-88, 109 Stat. 803. These significant questions
deserve resolution on a full record, including the comments of all
interested persons, not just the parties already of record.
Accordingly, a declaratory order proceeding is instituted to
consider the issues raised in UP's petition and respondents' replies,
based on the comments of all interested parties. This proceeding will
be handled on the basis of written statements submitted by the parties.
Written comments (an original and 10 copies) by or on behalf of all
interested parties (including petitioner and respondents) must be filed
with the Board no later than July 12, 2000. Replies (an original and 10
copies) by petitioner and respondents must be filed no later than
August 1, 2000.\2\ Comments must state the basis for the party's
position and must contain the name and address of the commenting party.
Petitioner and respondents must be served concurrently with a copy of
each comment (and reply); other commenters must be served concurrently
with a copy of each reply.
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\2\ Replies may also be submitted by other commenting parties,
if desired, by the same date. Petitioner's and respondents'
representatives are directed to assist in providing an appropriate
mailing list to other interested parties, upon request.
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Board decisions and notices are available on our website at
``www.stb.dot.gov''.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: June 7, 2000.
By the Board, David M. Konschnik, Director, Office of
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 00-15000 Filed 6-12-00; 8:45 am]
BILLING CODE 4915-00-P