[Federal Register Volume 65, Number 4 (Thursday, January 6, 2000)]
[Proposed Rules]
[Pages 732-734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-209]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1244

[STB Ex Parte No. 385 (Sub-No. 4)]


Modification of the Carload Waybill Sample and Public Use File 
Regulations

AGENCY: Surface Transportation Board, Transportation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Modifications to the existing regulations are proposed that 
would require all railroads to identify contract movements in the 
annual carload waybill sample. A 30-year limit on the confidentiality 
of the ``Waybill Sample'' is also proposed.

DATES: Comments are due February 21, 2000.

ADDRESSES: Send comments (an original and 10 copies) referring to STB 
Ex Parte No. 385 (Sub-No. 4) to: Surface Transportation Board, Office 
of the Secretary, Case Control Branch, 1925 K Street, NW, Washington, 
D.C. 20423-0001.

FOR FURTHER INFORMATION CONTACT: Paul A. Aguiar, (202) 565-1527 or H. 
Jeff

[[Page 733]]

Warren, (202) 525-1533. [Assistance for the hearing impaired is 
available through TDD services (202) 565-1695.]

SUPPLEMENTARY INFORMATION: Railroads that annually terminate 4,500 or 
more carloads (or 5 percent of the carloads in any State) are required 
to report data, including revenues, on individual movements drawn from 
a sampling of their traffic. This ``Waybill Sample'' is used for a 
variety of purposes by the Board, by parties appearing before the 
agency, by other Federal and State agencies, and by the public in 
general. Because of the current widespread use of confidential 
transportation contracts in the railroad industry,1 the 
Waybill Sample reporting requirements must be revised to ensure that 
accurate and representative data on contract movements are 
reported.2 At the same time, confidentiality must be 
maintained and the reporting burden held to a minimum.
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    \1\ The Association of American Railroads (AAR) recently advised 
the General Accounting Office that 70% of rail traffic moves under 
contract. Railroad Regulation: Changes in Railroad Rates and Service 
Quality Since 1990 (GAO/RCED-99-93, Apr. 1999), p.23.
    \2\ Most class I railroads identify contract movements in the 
Waybill Sample. Some carriers, however, do not, and as a result, the 
accuracy and representativeness of Waybill Sample suffers.
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    In an Advance Notice of Proposed Rulemaking (ANPR), served May 17, 
1999, we solicited comments on modifications to the existing 
regulations at 49 CFR Part 1244 to enhance the usefulness of the 
Waybill Sample and to conform to requirements of the National Archives 
and Records Administration (Archives) for storing historical records. 
We specifically requested comments on requiring all railroads to 
identify (flag) those shipments in the Waybill Sample that are governed 
by transportation contracts and to report the actual revenues for each 
such contract shipment. We explained that, to maintain the 
confidentiality of the contract rate information, we would substitute 
an average revenue value for the actual revenues in the version of the 
Waybill Sample that is made publicly available. We suggested that these 
changes would fulfill our need for more complete contract data, while 
protecting sensitive commercial contract rate information, and would 
allow others to conduct accurate, broad-based economic studies. 
Finally, we requested comments on limiting the confidentiality of the 
Waybill Sample records to 20 years.
    We received comments from AAR, the U.S. Department of 
Transportation (DOT), the Western Coal Traffic League (WCTL), David L. 
Hall (Hall), and Escalation Consultants, Inc (EC).

1. Identification of Contract Shipments

    AAR objects to mandatory flagging and suggests that the decision to 
identify contract movements should be left to the carriers. AAR 
questions the need to identify contract movements and argues that the 
flagging requirement would impose added administrative and cost burdens 
on the railroads.
    DOT supports requiring the railroads to identify contract 
shipments. DOT states that this change will bring greater consistency 
to the Waybill Sample and improve the Board's capacity to monitor and 
analyze the rail industry. WCTL and Hall also support requiring 
railroads to identify contract shipments in the Waybill Sample, 
suggesting that it will increase the accuracy of the data and the 
sample's usefulness.
    We agree that we need accurate information on the rail industry for 
monitoring and regulating that industry. Inaccurate information on the 
amount and nature of traffic moving under contract (and thus beyond our 
regulatory control) could affect our assessment of the potential impact 
of our decisions on rail transportation issues.
    The collection of this contract data should place little additional 
burden on the industry. The proposed rule will have no impact on those 
carriers already flagging contract movements and, judging from the 
willingness of many railroads to do so voluntarily, should place only a 
relatively minor burden on those not currently flagging contracts.

2. Masking of Contract Revenues

    Under current procedures each carrier that flags contract shipments 
is permitted to encrypt (mask) the revenues associated with such 
shipments so long as it provides us with the necessary information to 
develop the actual contract revenues. In an attempt to provide a more 
useful method of masking all revenue information in the Waybill Sample, 
we suggested developing an average revenue per ton-mile by Standard 
Transportation Commodity Code within broad geographic areas that we 
would substitute for actual revenues in the publicly available Waybill 
Sample. The commenting parties uniformly oppose this proposal. AAR is 
concerned that the submission of unmasked contract revenues (even 
though the revenues would be masked prior to any public release) would 
increase the risk of inadvertent release of confidential information. 
DOT, EC, WCTL and Hall are concerned that the use of broad geographic 
aggregations would result in worse, rather than better, information 
being available. Given the parties' universal opposition to this 
proposal, we will not pursue it further.
    Under the proposed regulations, railroads will be allowed to 
continue to develop their own procedures to mask contract revenues, 
provided that those procedures are disclosed to us. However, if 
carriers do not want to develop their own masking procedures, we will, 
upon request, mask the revenues once the waybill information is 
submitted or provide a masking procedure for the carriers to apply.

3. Waybill Confidentiality Time Limit

    Finally, to conform to requirements for storage of the Waybill 
Sample by the Archives, the ANPR requested comment on limiting the 
confidential treatment of contract revenue information contained in the 
Waybill Sample to a 20-year period. We selected 20 years because most 
rail contracts do not exceed a 20-year term. Thus, we believed this 
period would be adequate to protect commercially sensitive shipper and 
railroad data.
    AAR argues that the confidential information should never be made 
public and should be destroyed at the end of the period for which the 
Board normally maintains these records. WCTL and Hall support the 
proposed 20-year confidentially limit, while EC regards the 20-year 
period as excessive and suggests a time limit of no more than 5 to 7 
years.
    The Archives, however, has concluded that the Waybill Sample is a 
permanent Board record and, as such, must be retained. 3 
Therefore, our task here is not to determine whether the Waybill Sample 
should be kept, but rather how long it should remain confidential. We 
are concerned about the premature release of information that continues 
to have proprietary commercial value. For that reason, we now propose a 
confidentially period of 30 years, a period significantly longer than 
the term of any rail contract of which we are aware. We also propose 
that the Waybill Sample be sent to the Archives as we maintain it--the 
contract flags will be included, but the contract revenue will remain 
masked.
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    \3\  In accordance with the National Archives and Records 
Administrations Act of 1984, Pub. L. 98-497, 44 U.S.C. 101 note, the 
Waybill Sample was appraised by the Archives and determined to be a 
permanent record of the Board (Request to Transfer, Approval, and 
Receipt of Records to National Archives of the United States Job 
Number NN3-134-094-001). Permanent records must be transferred to 
the Archives under 44 U.S.C. 2107.

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    This action will not significantly affect either the quality of the 
human environment or energy conservation.
    Pursuant to 5 U.S.C. 605(b), we conclude preliminarily that our 
action will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act.

List of Subjects in 49 CFR Part 1244

    Railroads, Reporting and recordkeeping requirements.

    Authority: 49 U.S.C. 11145.

    Decided: December 27, 1999.

    By the Board, Chairman Morgan, Vice Chairman Clyburn, and 
Commissioner Burkes.
Vernon A. Williams,
Secretary.

    For the reasons set forth in the preamble, title 49, part 1244 of 
the Code of Federal Regulations is proposed to be amended as follows:
    1. The authority citation for Part 1244 continues to read as 
follows:

    Authority: 49 U.S.C. 721, 10707, 11144, 11145.

    2. Redesignate Secs. 1244.3 through 1244.8 as Secs. 1244.4 through 
1244.9.
    3. Add new Sec. 1244.3 to read as follows:


Sec. 1244.3  Reporting contract shipment waybills.

    (a) All railroads shall identify (flag) contract shipment waybills.
    (b) The revenue associated with contract shipments may be encrypted 
(masked) to safeguard the confidentiality of the contract rates.
    (1) Upon written request, the Board will provide a masking 
procedure for a railroad's use or will mask the contract revenues when 
the waybill sample is filed with the Board.
    (2) When a railroad intends to use its own proprietary masking 
procedure, those procedures, and any changes in those procedures, must 
be approved by the Board thirty (30) days prior to their use.
    (3) All railroads that use a proprietary masking procedure, and 
intend to continue to use the same procedure, must certify, by letter 
to the Board, prior to January 31 each year, that the contract revenue 
masking procedures are unchanged.
    (4) All correspondence and certifications concerning masking 
procedures should be addressed to: Director, Office of Economics, 
Environmental Analysis, and Administration, Surface Transportation 
Board, Washington, D.C. 20423-0001, ATTN: Waybill Coordinator.

[FR Doc. 00-209 Filed 1-5-00; 8:45 am]
BILLING CODE 4915-00-P