STB Rejects Foster Farms’ Emergency Service Order Request
Written by Marybeth Luczak, Executive Editor
The Surface Transportation Board (STB) on Feb. 14 denied “as moot” the petition for an emergency service order by Foster Poultry Farms (Foster Farms), which in late 2022 said there had been a “substantial, measurable deterioration” of Union Pacific (UP) rail service to its Traver, Turlock and Delhi, Calif., facilities.
The STB in its decision (download below) directed UP to file weekly status reports until May 15, 2023, and encouraged the Class I and Foster Farms “to work together, and with the Board’s Office of Public Assistance, Governmental Affairs, and Compliance, as appropriate, to ensure adequate rail service to Foster Farms’ facilities.” The STB added that it “favors resolution of disputes through mediation, in lieu of formal Board proceedings, whenever possible, and that the Board’s mediation program is open to all parties eligible to bring or defend matters before the Board.”
On Dec. 29, 2022, Foster Farms filed an ex parte petition for an emergency service order—its second of the year. (STB on June 17, 2022, granted the first petition and issued an emergency order to UP due to service issues.)
The STB, in its Feb. 14, 2023 decision, said it “may issue an order under 49 U.S.C. § 11123 when it ‘determines that shortage of equipment, congestion of traffic, unauthorized cessation of operations, … or other failure of traffic movement … creates an emergency situation of such magnitude as to have substantial adverse effects on shippers, or on rail service in a region of the United States, or that a rail carrier providing transportation subject to the jurisdiction of the Board … cannot transport the traffic offered to it in a manner that properly serves the public. Based on the current record [with service reports from UP and Foster Farms], the Board declines to issue another directed service order at this time. According to Foster Farms, upon delivery of the five trains, all three facilities would be fully operational. … Therefore, Foster Farms’ petition for a second emergency service order will, at this time, be denied as moot.”
According to the STB, UP’s and Foster Farms’ reports to the Board “suggest that the general service issues Foster Farms is experiencing are recurrent. For example, Foster Farms alleges unpredictable service since February of 2022. … (“[T]he issue since February of this year has been, and will continue to be for the indefinite future, whether UP can sustain service over a sufficient amount of time for Foster Farms to build up its storage and to alleviate the necessity of Foster Farms to expend its resources and incur the additional costs of scrambling to find corn from alternative sources and transportation modes to meet its contractual obligations to customers and otherwise mitigate the harm caused by UP’s service failures.”).) These issues and Foster Farms’ alarm about potential future service shortcomings by UP and future relief it may seek, including potential access by BNSF through switching or trackage rights, may be more appropriately addressed, if at all, under other regulatory and statutory provisions, such as the Board’s regulations at 49 C.F.R. § 1147.1 or the common carrier provisions of 49 U.S.C. § 11101 and related regulations. Should Foster Farms wish to pursue such other relief in lieu of or in addition to relief available under 49 U.S.C. § 11123, it may supplement and/or amend its pleadings in this docket to the extent necessary to conform with the applicable requirements. …”
Because the STB “remains sensitive to Foster Farms’ ongoing concerns,” it said that this docket will remain open until Aug. 14, 2023.
