[Federal Register: November 2, 2007 (Volume 72, Number 212)]
[Proposed Rules]
[Page 62200-62203]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no07-23]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1114, 1121, 1150, and 1180
[STB Ex Parte No. 575 (Sub-No. 1)]
Disclosure of Rail Interchange Commitments
AGENCY: Surface Transportation Board, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board is requesting comments on
proposed rules to require that parties seeking to exempt, or to invoke
class exemptions covering, transactions involving the sale or lease of
railroad lines, identify provisions in their agreements that restrict
the ability of the purchaser or tenant railroad to interchange traffic
with rail carriers other than the seller or landlord railroad
(interchange commitments). The proposed rules also provide a procedure
whereby shippers or other affected parties may obtain access to such
provisions. The Board is taking this action to facilitate the case-
specific review of the reasonableness of interchange commitments and to
facilitate the Board's monitoring of their usage.
DATES: Opening comments may be filed by any interested member of the
public by January 2, 2008. Reply comments may be filed by January 22,
2008. Since OMB is required to make a decision concerning the STB's
request for approval of this information collection between 30 and 60
days after November 2, 2007, a comment to OMB is best assured of having
its full effect if OMB receives it by December 3, 2007.
ADDRESSES: Any comments submitted in this proceeding must refer to STB
Ex Parte No. 575 (Sub-No. 1) and may be submitted either via the
Board's e-filing format or in the traditional paper format. Any person
using e-filing must attach a document and otherwise comply with the
instructions found on the Board's http://www.stb.dot.gov Web site, at
the ``E-FILING'' link. Any person submitting a filing in the
traditional paper format must submit an original and 10 paper copies of
the filing (and also an electronic version) to: Surface Transportation
Board, 395 E Street, SW., Washington, DC 20423-0001. Because all
comments will be posted to the Board's Web site, persons filing them
with the Board need not serve them on other participants but must
furnish a hard copy on request to any participant.
[[Page 62201]]
Send comments to OMB at the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th Street, NW.,
Washington, DC 20503, Attention: Desk Officer for STB.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395.
[Federal Information Relay Service (FIRS) for the hearing impaired: 1-
800-877-8339.]
SUPPLEMENTARY INFORMATION: Additional information and background on the
proposed regulations, including the basis for the Board's proposed
regulations, appear in the decision in Review of Rail Access and
Competition Issues--Renewed Petition of the Western Coal Traffic
League, STB Ex Parte No. 575, et al., which is being served on the date
of publication of this notice, and is available on the Board's Web site
at http://www.stb.dot.gov.
To purchase a copy of the full decision, write to, e-mail or call:
ASAP Document Solutions, 9332 Annapolis Rd., Suite 103, Lanham, MD
20706; e-mail asapdc@verizon.net; telephone (202) 306-4004. [Assistance
for the hearing impaired is available through FIRS at 1-800-877-8339.]
The proposed collection of information in the proposed revisions to
our regulations for exempting the sale or lease of railroad lines is
being submitted to the OMB for review as required under the PRA, 44
U.S.C. 3507(d) and OMB regulations at 5 CFR 1320.11. Pursuant to the
Paperwork Reduction Act (PRA) and Office of Management and Budget (OMB)
regulations at 5 CFR 1320.8(d)(3), the Board also seeks comments
regarding the collection of information that would be required in the
proposed revisions to our regulations for exempting the sale or lease
of railroad lines. Specifically, the Board seeks comments on: (1)
Whether the collection of information proposed here is necessary for
the proper performance of the functions of the Board, including whether
the collection has practical utility; (2) the accuracy of the Board's
burden estimates; (3) ways to enhance the quality, utility, and clarity
of the information collected; and (4) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology, when appropriate. Information pertinent to these issues is
included. Pursuant to the PRA and OMB regulations, the STB is
submitting a request to OMB for approval of this information
collection. Submit comments on the four questions above to both the STB
and OMB.
The additional information below is included to assist those who
may wish to submit comments pertinent to review under the Paperwork
Reduction Act.
Description of Collection
Title: Contracts to be Submitted When Rail Carriers Seek Exemption
to Acquire (Through Purchase or Lease) and/or Operate a Rail Line.
OMB Control Number: 2140-XXXX.
STB Form Number: None.
Type of Review: New collection.
Respondents: Noncarriers and carriers seeking an exemption to
acquire (through purchase or lease) and/or operate a rail line, if the
transaction creates an interchange commitment.
Number of Respondents: 65 (potential).
Estimated Time Per Response: Less than 15 minutes.
Frequency: On occasion.
Total Burden Hours (annually including all respondents): 16 hours.
Total ``Non-hour Burden'' Cost: None identified.
Needs and Uses: Under 49 U.S.C. 10502, noncarriers and carriers may
seek an exemption from the prior approval requirements of sections
10901, 10902, and 11323 to acquire (through purchase or lease) and
operate a rail line. The proposed collection of agreements with
interchange commitments is intended to facilitate the Board's
monitoring of their usage.
Retention Period: Information in this report will be maintained in
the Board's confidential file for 10 years, after which it is
transferred to the National Archives.
Small Entities
The Board certifies that the proposed revisions to our regulations,
if adopted, will not have a significant effect on a substantial number
of small entities within the meaning of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.). The regulations will not have a significant
effect on small entities because they require merely that a party
seeking an exemption for the lease or sale of trackage identify the
existence of any interchange commitment and give the Board a copy of
the document that creates it. The provision of copies of an existing
document will involve only limited additional copying expense.
Moreover, the regulations will not affect a substantial number of small
entities because they will only apply to small railroads that become
parties to future line sales or leases that involve interchange
commitments.
Board decisions, notices, filings, and hearings transcripts are
also available on our Web site at http://www.stb.dot.gov.
List of Subjects
49 CFR Part 1114
Administrative practice and procedure.
49 CFR Parts 1121 and 1150
Administrative practice and procedure, Railroads.
49 CFR Part 1180
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements.
Authority: 49 U.S.C. 721, 5 U.S.C. 553.
Decided: October 29, 2007.
By the Board, Chariman Nottingham, Vice Chairman Buttrey, and
Commissioner Mulvey.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, parts 1114, 1121, 1150,
and 1180, of title 49, chapter X, of the Code of Federal Regulations
are proposed to be amended as follows:
PART 1114--APPELLATE PROCEDURES
1. The authority citation for part 1114 continues to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
2. Amend Sec. 1114.30 by adding paragraph (d) to read as follows:
Sec. 1114.30 Production of documents and records and entry upon land
for inspection and other purposes.
* * * * *
(d) Agreements Containing Interchange Commitments. In any
proceeding involving the reasonableness of provisions related to a rail
carrier sale or lease agreement that serve to induce a party to the
agreement to interchange traffic with another party to the agreement,
rather than with a third-party connecting carrier, whether by outright
prohibition, per-car penalty, adjustment in the purchase price or
rental, positive economic inducement, or other means, a party to the
proceeding may obtain a confidential, complete version of the
agreement, with the prior approval of the Board. The party seeking such
approval must file an appropriate motion containing a draft protective
order and undertaking(s) that will ensure the agreement is kept
confidential. The motion seeking approval may be filed at any time
after the initial complaint or petition, including before the answer to
the complaint or petition is due. A reply to such a motion must be
filed within 10 days thereafter. The motion will be considered by the
Board in an expedited manner.
[[Page 62202]]
PART 1121--RAIL EXEMPTION PROCEDURES
3. The authority citation for part 1121 continues to read as
follows:
Authority: 49 U.S.C. 10502 and 10704.
4. Amend Sec. 1121.3 by adding paragraph (d) to read as follows:
Sec. 1121.3 Content.
* * * * *
(d) Transactions Imposing Interchange Commitments. (1) If a
proposed acquisition or operation of a rail line involves a provision
or agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty,
adjustment in the purchase price or rental, positive economic
inducement, or other means (``interchange commitment''), the following
additional information must be provided:
(i) The existence of that provision or agreement and the affected
interchange points must be identified; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement, which may be filed with the
Board under 49 CFR 1104.14(a) and will be kept confidential without
need for the filing of an accompanying motion for a protective order
under 49 CFR 1104.14(b).
(2) To obtain information about an interchange commitment for use
in a proceeding before the Board, a shipper or other affected party may
be granted access to the confidential documents filed pursuant to
paragraph (d)(1) of this section by filing, and serving upon the
petitioner, a ``Motion for Access to Confidential Documents,''
containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
PART 1150--CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD
LINES
5. The authority citation for part 1150 continues to read as
follows:
Authority: 49 U.S.C. 721(a), 10502, 10901, and 10902.
6. Amend Sec. 1150.33 by adding paragraph (h) to read as follows:
Sec. 1150.33 Information to be contained in notice--transactions that
involve creation of Class III carriers.
* * * * *
(h) Transactions Imposing Interchange Commitments. (1) If a
proposed acquisition or operation of a rail line or change of operators
involves a provision or agreement that may limit future interchange
with a third-party connecting carrier, whether by outright prohibition,
per-car penalty, adjustment in the purchase price or rental, positive
economic inducement, or other means (``interchange commitment''), the
following additional information must be provided:
(i) The existence of that provision or agreement and the affected
interchange points must be identified; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement, which may be filed with the
Board under 49 CFR 1104.14(a) and will be kept confidential without
need for the filing of an accompanying motion for a protective order
under 49 CFR 1104.14(b).
(2) To obtain information about an interchange commitment for use
in a proceeding before the Board, a shipper or other affected party may
be granted access to the confidential documents filed pursuant to
paragraph (h)(1) of this section by filing, and serving upon the
petitioner, a ``Motion for Access to Confidential Documents,''
containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
7. Amend Sec. 1150.43 by adding paragraph (h) to read as follows:
Sec. 1150.43 Information to be contained in notice for small line
acquisitions.
* * * * *
(h) Transactions Imposing Interchange Commitments. (1) If a
proposed acquisition or operation of a rail line or change of operators
involves a provision or agreement that may limit future interchange
with a third-party connecting carrier, whether by outright prohibition,
per-car penalty, adjustment in the purchase price or rental, positive
economic inducement, or other means (``interchange commitment''), the
following additional information must be provided:
(i) The existence of that provision or agreement and the affected
interchange points must be identified; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement, which may be filed with the
Board under 49 CFR 1104.14(a) and will be kept confidential without
need for the filing of an accompanying motion for a protective order
under 49 CFR 1104.14(b).
(2) To obtain information about an interchange commitment for use
in a proceeding before the Board, a shipper or other affected party may
be granted access to the confidential documents filed pursuant to
paragraph (h)(1) of this section by filing, and serving upon the
petitioner, a ``Motion for Access to Confidential Documents,''
containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
PART 1180--RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
8. The authority citation for part 1180 continues to read as
follows:
Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 721,
10502, 11323-11325.
9. Amend Sec. 1180.4 by adding paragraph (g)(4) to read as
follows:
Sec. 1180.4 Procedures.
(g) Notice of exemption. * * *
(4) Transactions Imposing Interchange Commitments. (i) If a
proposed acquisition or operation of a rail line involves a provision
or agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty,
adjustment in the purchase price or rental, positive economic
inducement, or other means (``interchange commitment''), the following
additional information must be provided:
(A) The existence of that provision or agreement and the affected
interchange points must be identified; and
(B) A confidential, complete version of the document(s) containing
or addressing that provision or agreement, which may be filed with the
Board under 49 CFR 1104.14(a) and will be kept confidential without
need for the filing of an accompanying motion for a protective order
under 49 CFR 1104.14(b).
(ii) To obtain information about an interchange commitment for use
in a proceeding before the Board, a shipper or other affected party may
be granted access to the confidential documents filed pursuant to Sec.
1180.4(g)(4)(i) of this section by filing, and serving upon the
petitioner, a ``Motion for Access to Confidential Documents,''
containing:
(A) An explanation of the party's need for the information; and
(B) An appropriate draft protective order and confidentiality
undertaking(s)
[[Page 62203]]
that will ensure that the documents are kept confidential.
[FR Doc. E7-21569 Filed 11-1-07; 8:45 am]
BILLING CODE 4915-01-P