[Federal Register Volume 72, Number 212 (Friday, November 2, 2007)]
[Proposed Rules]
[Pages 62200-62203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21569]


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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 [email protected]; 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