Case Information
*1 THE ATTORNEY GENERAL OF TEXAS
March 3, 1988 Honorable Jim Nugent Opinion No. JM-867 Chairman
Railroad Commission of Texas Re: Whether the Railroad P. 0. Drawer 12967 Commission is prohibited Capitol Station by federal law from exer- Austin, Texas 78711 cising its jurisdiction 6498,
under article V.T.C.S., to grant rail- road discontinuances (RQ-1312) Dear Mr. Nugent:
You ask whether the Staggers Rail Act of 1980, Public Law 96-448, deprives the Railroad Commission of jurisdic- tion to consider applications submitted by railroads pro- viding intrastate service in Texas for authority discontinue "agencies" established under article 6498, V.T.C.S. That statute provides:
Each railroad company in this State shall provide and maintain adequate, comfortable and clean depots and depot buildings at their several stations for the accommodation of passengers, and keep said depot buildings well lighted and warmed for the comfort and accommodation of the traveling public. They shall keep and maintain apartments in such depot buildings for the use of passengers, and keep and maintain adequate and suitable freight depots and buildings for receiving, handling, storing and delivering of all freight handled by such roads, and the Com- mission shall require railroad companies comply fully with the provisions of this law under such regulations as said Commission may deem reasonable.
P. *2 V.T.C.S. art. 6498 (formerly V.T.C.S. art. 6693). We conclude that the Railroad Commission has, at present, no ? authority to consider applications for the discontinuance of agencies.
Until 1980, state regulatory authorities, such as the Texas Railroad Commission, had at least initial jurisdic- tion to regulate intrastate aspects of rail transportation Of course, the federal furnished by interstate carriers. government possesses the power to preempt state regulation commerce to protect the free flow of inter- of -state and Texas Railwav v. United state commerce. See Houston States, 234 U.S. 342 (1914) (the Shre eo r-t Rate Cases). In the Staggers Rail Act of 1980, Pub: L: No. 96-448 Stat. 1895 (codified in scattered sections of titles' 11, 45, and 49 of the United States Code), Congress adopted a new national rail transportation policy designed both to reduce government regulation of railway companies and to allow the industry to earn "adequate revenues. 'a See oenerallv Staggers Rail Act of 1980, Rub. L. No. 96-448, 1980 U.S. Code Cong. & Admin. News (94 Stat.) 3978; 49 U.S.C. §lOlOla(3).
Congress directed the Interstate Commerce both to llcooperate with the States on transportation matters" and to "assure that intrastate regulatory juris- diction is exercised in accordance with the standards established" in the Staggers Act. 49 U.S.C. §lOlOla(9). The Staggers Act provides for the possible preemption of state jurisdiction in three different, but interrelated, ways :
(1) It preempts all state jurisdiction over certain general intrastate rate increases:
(2) It prohibits a state from exercising any juris- diction over intrastate rail transportation provided bv an interstate ca& unless the state "exercises such jurisdiction exclusively in accordance with the provisions of" the Staggers Act: and
(3) It preempts m state regulation of any aspect of intrastate rail transportation provided by an interstate carrier unless the federal government certifies that state regulatory standards and procedures are in accord with the Staggers Act.
See 49 U.S.C. 511501(b)(l), (b) (3) (A), (b) (4) (A), and (b) (6) - ?
The last provision is the most important in considering the Railroad Commissiongs authority to grant agency discontinuances. In particular, the Staggers Rail Act requires the Interstate Commerce
affirmatively certify that a state regulatory program for intrastate rail transportation provided by an interstate carrier is in compliance with the Act. In relevant part, the Staggers Act provides:
Any State authority which is certified the Commission . . . may use its standards and procedures in exercising jurisdiction over intrastate rail rates, classifications, rules, and practices during the 5-year period commencing on the date of such certification. Anv State authoritv which is . . . denied certrflcatlon . . . av t exercise anv iurisdiction over intras&e rates. classifications. rules. and vractices until it receives certification. . . . (Emphasis added.) 49 U.S.C. 911501(b)(4)(A). We note that "rules and
C practices" of rail carriers are defined, in part, to mean
rules and practices on matters related . . . transportation or service, including rules and practices on . . . (D) facilities for transportation.
49 U.S.C. 510702(a)(2). Additionally, a V*railroad'U is defined in the Interstate Commerce Act to include:
a freight depot, yard, and ground, used or necessary for transportation.
49 U.S.C. §10102(21)(c). Finally, the Act defines Vransportation" to include
(4 . . . properfy, facilit[ies], instru- mentalit[ies],or equipment of any kind related to the movement of passengers or property . . .; and
(B) services related to that movement. . . .
49 U.S.C. §10102(26).1
Thus, in order for the Railroad Commission to be able to exercise the authority to grant agency or depot discon- tinuances, under article 6498, V.T.C.S., the State must be certified by the Interstate Commerce Commission to regulate intrastate rail transportation provided by inter- state carriers. Texas has failed to earn that certifica- tion. Hx Parte No. 388 (Sub-No. 31) State Intrastate 20 1984) aff'd Rail Rate Authoritv - Texas (served ApLil sub nom. Railroad Commission of Texas v. &ited States, 765 F.2d 221 (D.C. Cir. 1985). See also State of Texas v. United States, 730 F.2d 409 (5th Cir. 1984), Ngdified on rehearinq, 749 F.2d 1144 (5th Cir.), cert. denied, 472 U.S. 1032 (1985); State of Texas v. United States, F.2d 420 (5th Cir. 1984). Additionally, an attack by Texas on the constitutionality of the provisions of the Staggers Act preempting regulation by noncertified states failed. State f Texas v. United States, 730 F.2d 339 (5th Cir.), cerz. denied, 469 U.S. 893 (1984); see f&~ Illinois Commerce Commission Interstate Commerce Commission, 749 F.2d 875, 885-87ViD.C. Cir. 1984), cert. denied, 474 U.S. 820 (1985).
In the decision in Railroad Commission of Texas, sunra, the Court of Appeals for the District of Columbia Circuit noted that Texas had failed to obtain the certification required under the Staggers Rail Act to enable it to regulate intrastate rail transportation provided by interstate carriers, thus leaving "the Texas regulatory apparatus out in the cold." 765 F.2d at 226. We find no basis to question either the findings of the Interstate Commerce Commission or the several appellate courts which have rejected the Railroad Commission's several attempts to avoid the preemption of its authority to regulate intrastate rail transportation provided by- interstate carriers. Until the federal government grants the Texas Railroad Commission the necessary authority regulate intrastate rail transportation provided interstate carriers, the Railroad Commission is without
1. The Railroad retains authority regulate the safety of railways in Texas, as permitted by the Rail Safety Act of 1970, 45 U.S.C. 5421 et seq.
P
jurisdiction to act on agency discontinuances, or any other matter preempted by the federal government.
The Texas Railroad Commission's authority to regulate agency discontinuances, see article 6498, V.T.C.S., has been preempted by the federal government, insofar as the maintained agencies are interstate carriers providing intrastate services. ~Jg$.%& MATTOX Attorney General of Texas NARYKELLER
First Assistant Attorney General
LOU MCCREARY
C. Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Hustion
Assistant Attorney General