[Federal Register Volume 65, Number 117 (Friday, June 16, 2000)]
[Rules and Regulations]
[Pages 37710-37711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15319]


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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.

ACTION: Final rules.

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SUMMARY: The existing regulations at 49 CFR Part 1244 are modified to 
require all railroads to identify contract movements in the annual 
carload waybill sample and establish a 30-year limit on the 
confidentiality of the ``Waybill Sample.''

EFFECTIVE DATE: January 1, 2001.

FOR FURTHER INFORMATION CONTACT: James Nash, (202) 565-1542 or H. Jeff 
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\ we are revising 
the Waybill Sample reporting requirements to ensure that accurate and 
representative data on contract movements are reported.\2\ At the same 
time, our rule will continue to protect the confidentiality of the 
Waybill Sample and keep the reporting burden 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\ While most Class I railroads identify contract movements in 
the Waybill Sample, some do not and no non-Class I carriers identify 
contract movements. As a result, the accuracy and representativeness 
of the Waybill Sample suffers.
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    In an Advance Notice of Proposed Rulemaking (ANPR), served May 17, 
1999 (64 FR 26723, 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.\3\ 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 contract shipment. We suggested 
that we could protect (mask) the confidently of the contract revenues 
by reporting average revenue figures in the Waybill Sample. We also 
suggested a 20-year confidentiality period to meet the requirements of 
the Archives.
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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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    We received comments from the Association of American Railroads 
(AAR), the U.S. Department of Transportation (DOT), the Western Coal 
Traffic League (WCTL), David L. Hall (Hall), and Escalation 
Consultants, Inc (EC). After considering the parties' comments, we 
issued a Notice of Proposed Rulemaking (NPR) served January 5, 2000 (65 
FR 732, January 6, 2000). In the NPR we dropped the universally opposed 
suggestion to use an averaging method to mask actual contract revenues 
in the Waybill Sample and instead proposed only to require railroads to 
identify (flag) contract movements. Under the proposed regulations, 
railroads would be free to continue to choose a masking method of their 
own (so long as the masking procedure is submitted to and approved by 
the Board) or ask us to develop one for them. We also raised the 
proposed limit on the confidentiality of the Waybill Sample from 20 
years to 30 years.
    We received comments on the NPR from WCTL and NITL. AAR, DOT, Hall, 
and EC, which had commented on the ANPR, did not comment on the NPR.

Identification of Contract Shipments

    Both WCTL and NITL support the proposed contract reporting rule and 
agree that it will provide more precise information concerning the 
volume and revenue of contract traffic while placing little additional 
reporting burden on the railroad industry. Because our proposal to 
require railroads to flag contract rates and mask the revenue 
associated with contract traffic is unopposed, we will adopt it without 
change.
    WCTL also suggested that we should: (1) Subject to appropriate 
protective conditions, make the contract revenues available to shipper 
and other parties in rate and rulemaking cases; and (2) impose a user 
fee for Board masking of waybill sample revenues. Our long-standing 
policy is not to release actual contract revenues reported in the 
confidential waybill sample because of the potential for commercial 
harm to both the contracting railroad and shipper. WCTL argues that 
such commercially sensitive data may be needed by shippers for use in 
Board proceedings. However, WCTL provides no compelling reason to make 
a change to this general policy. We note that, through the discovery 
process, shippers have obtained information on some contract rates in 
rate complaint proceedings. We believe that it is best to address the 
issue of access to contract information on a case-by-case basis. 
Indeed, we note that neither the ANPR nor the NPR proposed such a 
change to our general policy on access to contract information and, 
therefore, it would be inappropriate to address that issue in this 
proceeding. For this same reason, it would be inappropriate in this 
proceeding to adopt a fee for masking a railroad's contract revenues. 
We will consider adopting a fee for this function

[[Page 37711]]

after we have gained some experience under the new rule.

Waybill Confidentiality Time Limit

    WCTL supports the 30-year limit, but NITL argues that 30 years is 
excessive. NITL argues that there is no need to go beyond our original 
proposal of 20 years because the large majority of rail contracts have 
terms of less than 20 years and because the competitive value of rail 
contract rates negotiated 20 years ago is negligible.
    While recognizing that most transportation contracts are for a term 
of less than 20 years, we nevertheless must exercise caution in 
sanctioning the release of data that may contain proprietary 
information. For that reason, we will adopt the confidentiality period 
of 30 years. We will also adopt the unopposed proposal that the Waybill 
Sample be sent to the Archives as we maintain it--i.e., the contract 
flags will be included, but the contract revenue will remain masked.
    The modifications to Title 49, part 1244 of the Code of Federal 
Regulations are contained in this document.
    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 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.

    Authority: 49 U.S.C. 11145.

List of Subjects in 49 CFR Part 1244

    Freight, Railroads, Reporting and recordkeeping requirements.

    By the Board, Chairman Morgan, Vice Chairman Burkes, and 
Commissioner Clyburn.

    Decided: June 12, 2000.
Vernon A. Williams,
Secretary.

    For the reasons set forth in the preamble, Title 49, Part 1244 of 
the Code of Federal Regulations is amended as follows:

PART 1244--WAYBILL ANALYSIS OF TRANSPORTATION OF PROPERTY--
RAILROADS

    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, DC 20423-0001, ATTN: WAYBILL COORDINATOR.
[FR Doc. 00-15319 Filed 6-15-00; 8:45 am]
BILLING CODE 4915-00-P