[Federal Register Volume 81, Number 145 (Thursday, July 28, 2016)]
[Proposed Rules]
[Page 49613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17883]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

49 CFR Part 1244

[Docket No. EP 385 (Sub-No. 7)]


Waybill Data Reporting for Toxic Inhalation Hazards; Withdrawal

AGENCY: Surface Transportation Board.

ACTION: Proposed rule, withdrawal.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board is withdrawing the proposed 
rules and discontinuing the EP 385 (Sub-No. 7) rulemaking proceeding 
which proposed to expand the Waybill Sample collection with respect to 
traffic movements designated as a Toxic Inhalation Hazard.

DATES: The proposed rule published on February 2, 2010 (75 FR 5261) is 
withdrawn and the rulemaking proceeding is discontinued on July 28, 
2016.

FOR FURTHER INFORMATION CONTACT: Allison Davis at (202) 245-0378. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: On January 28, 2010, in the above titled 
docket, the Board issued a Notice of Proposed Rulemaking (NPR) seeking 
public comment on a proposal to expand information that certain 
railroads are required to submit to the Board for purposes of the 
carload Waybill Sample (75 FR 5261, February 2, 2010). Specifically, 
the proposal would require railroads to submit information about all 
traffic movements designated as a Toxic Inhalation Hazard (TIH).
    As explained below, this proceeding will be discontinued.
    The Waybill Sample is the Board's primary source of information 
about freight rail shipments terminating in the United States. A 
waybill is a document describing the characteristics of an individual 
rail shipment, and includes (among other things) the following 
information: The originating and terminating freight stations, the 
railroads participating in the movement, the points of all railroad 
interchanges, the number of cars, the car initial and number, the 
movement weight in hundredweight, the commodity, and the freight 
revenue. Currently, railroads that are required to file Waybill Sample 
information may report a random sample of as little as 1% (using the 
manual system) or 2.5% (using the computerized system) of carloads on a 
waybill. See 49 CFR 1244.4(b) and (c).\1\
---------------------------------------------------------------------------

    \1\ Under 49 CFR 1244.2, a railroad is required to file Waybill 
Sample information for all line-haul revenue waybills terminated on 
its lines if it terminated at least 4,500 revenue carloads in any of 
the three preceding years, or it terminated at least 5% of the 
revenue carloads terminating in any state in any of the three 
preceding years. The Board recognizes that some of the submitted 
information is commercially sensitive, and thus the Board's 
regulations place limitations on releasing Waybill Sample data. See 
49 CFR 1244.9.
---------------------------------------------------------------------------

    In the NPR, the Board suggested that the expanded information 
gathered from the proposed rule would permit the Board to assess TIH 
traffic within the United States more accurately. The NPR also stated 
that the information would be beneficial in Three-Benchmark rail rate 
cases involving TIH traffic, giving parties a larger number of 
movements from which to develop comparison groups. The additional 
information would also assist the Board in quantifying the magnitude of 
TIH traffic, and would help the Board more accurately measure the 
associated costs of handling such traffic.
    On March 4, 2010, the Association of American Railroads (AAR) filed 
the single comment received in response to the NPR. The AAR agrees that 
expanded TIH waybill data for use in Three-Benchmark rate cases would 
be useful; but, it expressed several security-related concerns 
regarding the potential use of TIH-related data the Board proposed to 
collect. (AAR Comments 2, 7.) \2\ The AAR submits that, in light of the 
sensitive nature of detailed TIH waybill data, the Board should not 
collect and maintain this data and subject it to potential inadvertent 
disclosure unnecessarily. (Id. at 8.) The AAR suggests several 
alternatives to the Board's proposal. First, the AAR suggests 
disclosure on a case-by-case basis, where the defendant carrier in a 
Three-Benchmark rate proceeding would make all TIH waybills available 
to the complainant for the most current period. (Id. at 8.) Second, the 
AAR suggests that the Board could assess TIH traffic by obtaining data 
from the Transportation Security Administration, which collects some of 
the data that would be found in the Waybill Sample. (Id.) Lastly, the 
AAR suggests that, if the Board were to collect 100% of TIH waybill 
data, then the Board should restrict access to the data and house the 
data in a secure separate file. (Id. at 10-14.)
---------------------------------------------------------------------------

    \2\ Federal agencies view TIH movements as a potential target 
for terrorist activity and consider detailed information pertaining 
to TIH movements as sensitive security information (SSI). See, e.g., 
Federal R.R. Admin. Order, Designation of Sensitive Security 
Information under 49 U.S.C. 40119(b), SSI Order 2011-06-FRA-01 (July 
29, 2011), http://www.stb.dot.gov/stb/industry/Rate_Cases.htm 
(follow ``Federal Railroad Administration, July 29, 2011'' 
hyperlink).
---------------------------------------------------------------------------

    The Board appreciates and understands the AAR's concerns about 
security as it relates to TIH traffic. Without commenting on the AAR's 
suggested alternatives, we will discontinue this proceeding. Taking 
into consideration the security concerns raised and the lack of broader 
comment on the NPR, we will not move forward with the proposed rule and 
will discontinue this docket in the interest of administrative 
finality. However, the Board will consider ways to address this issue 
as part of future proceedings.

    Decided: July 21, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and 
Commissioner Begeman. Commissioner Begeman commented with a separate 
expression.

    COMMISSIONER BEGEMAN, commenting:
    This proceeding was initiated in January 2010, well before a 
majority of the current members began serving here. The only real 
action that has occurred on this matter that I am aware of was when the 
Association of American Railroads filed its comments in March 2010. 
Since that time, the Board could have worked to meaningfully address 
AAR's concerns and ultimately improve the proposal. Yet no such effort 
occurred. Therefore, the best course of action for this proceeding--one 
that has been effectively dormant for over six years--is for it to be 
discontinued, regardless of the proposal's potential merits.
    This proceeding is just one example of why I believe Congress has 
directed the Board to issue quarterly reporting on all of its 
outstanding rulemaking proposals. We simply must do more to improve the 
timeliness of all Board actions.

Kenyatta Clay,
Clearance Clerk.
[FR Doc. 2016-17883 Filed 7-27-16; 8:45 am]
BILLING CODE 4915-01-P