[Federal Register Volume 73, Number 105 (Friday, May 30, 2008)]
[Rules and Regulations]
[Pages 31033-31035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11952]


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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, Department of Transportation.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board is amending its regulations 
to require that parties seeking to obtain an individual exemption for, 
or to invoke a class exemption covering, a transaction involving the 
sale or lease of a railroad line identify any provision in their 
agreements that would restrict the ability of the purchaser or tenant 
railroad to interchange traffic with a rail carrier other than the 
seller or landlord railroad (interchange commitment). The rules also 
provide a procedure whereby a shipper or other affected party may 
obtain access to such provisions. The Board is adopting these 
regulations to facilitate the case-specific review of challenges 
involving interchange commitments and to facilitate the Board's 
monitoring of their usage. The final rule appears below.

DATES: Effective Date: This rule is effective on June 29, 2008.

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 
regulations appear in our written decision in Disclosure of Rail 
Interchange Commitments, STB Ex Parte No. 575 (Sub-No. 1), which is 
being served along with this notice.
    Except as noted in this agency's decision adopting the final rules, 
the

[[Page 31034]]

comments received in response to our prior notice give us no reason to 
modify the regulations as proposed. In our decision, we have addressed 
arguments that the disclosure of interchange commitments that we are 
seeking is more extensive than necessary, or not extensive enough, for 
proper performance of our statutory functions. No party has challenged 
our burden estimates or proposed a way to further minimize the burden 
on respondents from collection of the information \1\ and still provide 
the required information.
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    \1\ In the discussion pertaining to small entities in our notice 
published on November 2, 2007, we explained why the burden of 
collection would be minimal. No party has disputed our explanation.
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    Board decisions, notices, and filings are available on our Web site 
at http://www.stb.dot.gov.
    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., and Office of Management and Budget (OMB) regulations at 5 CFR 
1320.11, the Surface Transportation Board has obtained OMB approval for 
the collection of information adopted here.
    This collection of information has been assigned OMB Control No. 
2140-0016. Unless renewed, OMB approval expires on January 31, 2011. 
The display of a currently valid OMB control number for this collection 
is required by law. Under the PRA and 5 CFR 1320.8, an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless the collection displays a currently 
valid OMB control number.
    Pursuant to 5 U.S.C. 605(b), we reaffirm our finding in the Federal 
Register on November 2, 2007, that our action in this proceeding will 
not have a significant impact on a substantial number of small 
entities.

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: May 21, 2008.

    By the Board, Chairman Nottingham, Vice Chairman Mulvey, and 
Commissioner Buttrey.
Anne K. Quinlan,
Acting Secretary.

0
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 
amended as follows:

PART 1114--EVIDENCE; DISCOVERY

0
1. The authority citation for part 1114 continues to read as follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721.


0
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 an 
existing 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 with a need for the information 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 an explanation of the party's need for 
the information and 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 5 days thereafter. 
The motion will be considered by the Board in an expedited manner.

PART 1121--RAIL EXEMPTION PROCEDURES

0
3. The authority citation for part 1121 continues to read as follows:

    Authority: 49 U.S.C. 10502 and 10704.


0
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 identification 
of the affected interchange points; 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.
    (3) Deadlines.
    (i) Replies to a Motion for Access are due within 5 days after the 
motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days 
after the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

PART 1150--CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD 
LINES

0
5. The authority citation for part 1150 continues to read as follows:

    Authority: 49 U.S.C. 721(a), 10502, 10901, and 10902.


0
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

[[Page 31035]]

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 identification 
of the affected interchange points; 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.
    (3) Deadlines.
    (i) Replies to a Motion for Access are due within 5 days after the 
motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days 
after the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.


0
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 identification 
of the affected interchange points; 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.
    (3) Deadlines.
    (i) Replies to a Motion for Access are due within 5 days after the 
motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days 
after the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

PART 1180--RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION 
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES

0
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.


0
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 identification 
of the affected interchange points; 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) that will ensure that the documents are kept 
confidential.
    (iii) Deadlines.
    (A) Replies to a Motion for Access are due within 5 days after the 
motion is filed.
    (B) The Board will rule on a Motion for Access within 30 days after 
the motion is filed.
    (C) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

 [FR Doc. E8-11952 Filed 5-29-08; 8:45 am]
BILLING CODE 4915-01-P