[Federal Register Volume 78, Number 172 (Thursday, September 5, 2013)]
[Rules and Regulations]
[Pages 54589-54591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21548]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1121, 1150, and 1180
[Docket No. EP 714]
Information Required in Notices and Petitions Containing
Interchange Commitments
AGENCY: Surface Transportation Board, DOT.
ACTION: Final rules.
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SUMMARY: On November 1, 2012, the Board issued a Notice of Proposed
Rulemaking (NPR) proposing rules that would establish additional
disclosure requirements for notices and petitions for exemption where
the underlying lease or line sale includes an interchange commitment.
Based on the comments received and further evaluation, the Board now
adopts as final the proposed rules, with modifications that reduce the
amount of information required to be submitted. The final rules are set
forth below.
DATES: Effective date: These rules will be effective on October 5,
2013.
FOR FURTHER INFORMATION CONTACT: Amy C. Ziehm at (202) 245-0391.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION: The Board modifies its existing rules
regarding notices and petitions for acquisition exemption in which an
underlying sale or lease agreement includes an interchange commitment
with the addition of certain filing requirements. Additional
information is contained in the Board's decision served on September 5,
2013. To obtain a copy of this decision, visit the Board's Web site at
http://www.stb.dot.gov. Copies of the decision may also be purchased by
contacting the Board's Office of Public Assistance, Governmental
Affairs, and Compliance and (202) 245-0238.
Paperwork Reduction and Regulatory Flexibility
In the NPR, published in the Federal Register at 77 FR 66165 on
November 2, 2012, the Board sought comments pursuant to the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and
Budget (OMB) regulations at 5 CFR 1320.11, regarding: (1) Whether the
collection of information as modified in the proposed rule and further
described in Appendix B, 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. We received
comments regarding the Board's burden estimates and have addressed them
in the full decision.
The proposed rule modifications were submitted to OMB for review as
required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. No
substantive comments were received from OMB. Unless renewed, OMB
approval for this collection expires August 31, 2014. The OMB control
number is 2140-0016. The display of a currently valid OMB control
number for this collection is required by law. Under the PRA and 5 CFR
1320.11, 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.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
generally requires a description and analysis of new rules that would
have a significant economic impact on a substantial number of small
entities. Under Sec. 605(b), an agency is not required to perform an
initial or final regulatory flexibility analysis if it certifies that
the proposed or final rules will not have a ``significant impact on a
substantial number of small entities.'' In accordance with Sec.
605(b), we certify that the final rules will not have a significant
economic impact on a substantial number of small entities.\1\ The basis
for this determination is as follows.
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\1\ The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business. See
13 CFR 121.201. The SBA has established a size standard for rail
transportation, stating that a line-haul railroad is considered
small if its number of employees is 1,500 or less, and that a short
line railroad is considered small if its number of employees is 500
or less. Id. (industry subsector 482).
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The regulations adopted here will affect all railroads filing
notices and petitions for exemption for sales and leases that contain
interchange commitments. The filing railroad (or respondent) is
typically a small rail carrier. Between May 2008, when the Board began
requiring the disclosure of interchange commitments in notices and
petitions for exemption, and the date of this decision, a total of 12
notices or petitions for exemption for
[[Page 54590]]
leases that contain interchange commitments were filed that would have
been affected by these regulations, or 2.4 petitions per year.
Nevertheless, in an abundance of caution, the Board estimates that a
total of four small rail carriers, out of a total of approximately 560
small Class II and III rail carriers, will file such notices or
petitions per year, and thus will be affected by these additional
reporting requirements. We further estimate that the additional time
required by each rail carrier respondent to comply with these
additional reporting requirements is no more than eight hours. Most of
the information sought by the Board under these final rules is
information that the filing railroad would likely already have as a
result of due diligence it completed in the course of its contract
negotiations. With respect to the requirement that the filer provide an
estimate of the difference in the sale or lease price of the
transaction with and without the interchange commitment, the Board
seeks a good faith estimate to fulfill this requirement. If the filing
railroad does not have an estimate of the difference in price as a
result of contract negotiations, it can request that information in
writing from the incumbent carrier and submit to the Board the
incumbent carrier's response with its initial notice or petition.
Therefore, the Board certifies under 5 U.S.C. 605(b) that these rules
will not have a significant economic impact on a substantial number of
small entities within the meaning of the RFA.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1121
Administrative practice and procedure, Railroads.
49 CFR Part 1150
Administrative practice and procedure, Railroads.
49 CFR Part 1180
Administrative practice and procedure, Railroads, Reporting and
record keeping requirements.
Decided: August 29, 2013.
By the Board, Chairman Elliott, Vice Chairman Begeman, and
Commissioner Mulvey. Vice Chairman Begeman dissented with a separate
expression.
Vice Chairman Begeman, dissenting:
I did not object to the Board's Notice of Proposed Rulemaking
when it was issued last November, because I believed the Board could
benefit from hearing the views of interested parties on whether
changes were needed to improve the Board's existing rules on
interchange commitments. Unfortunately, the record fails to convince
me that these new requirements offer meaningful improvements over
the Board's existing rules, nor, importantly, that the usefulness of
the additional information outweighs the extra reporting burdens
being imposed on small businesses here. This is especially true
since it remains unclear how the Board will even use the additional
information, if at all. Therefore, I dissent from the Board's
decision.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board amends parts 1121, 1150, and 1180 of title 49,
chapter X, of the Code of Federal Regulations as follows:
PART 1121--RAIL EXEMPTION PROCEDURES
0
1. The authority citation for part 1121 continues to read as follows:
Authority: 49 U.S.C. 10502 and 10704.
0
2. Amend Sec. 1121.3 by revising the paragraph heading to paragraph
(d), paragraphs (d)(1) introductory text, and (d)(1)(ii), and by adding
paragraphs (d)(1)(iii) through (viii) to read as follows:
Sec. 1121.3 Content.
* * * * *
(d) Interchange Commitments. (1) The filing party must certify
whether or not 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''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (d)(1)(ii), (iv), (vii) of this
section 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) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line
in question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (d)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of
the proposed transaction and interchange commitment to the shippers
identified in paragraph (d)(1)(iii) of this section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
* * * * *
PART 1150--CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD
LINES
0
3. The authority citation for part 1150 continues to read as follows:
Authority: 49 U.S.C. 721(a), 10502, 10901, and 10902.
0
4. Amend Sec. 1150.33 by revising the paragraph heading to paragraph
(h), paragraphs (h)(1) introductory text, and (h)(1)(ii), and by adding
paragraphs (h)(1)(iii) through (viii) to read as follows:
Sec. 1150.33 Information to be contained in notice--transactions that
involve creation of Class III carriers.
(h) Interchange Commitments. (1) The filing party must certify
whether or not 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''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (h)(1)(ii), (iv), (vii) of this
section 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) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line
in question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (h)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of
the proposed transaction and interchange
[[Page 54591]]
commitment to the shippers identified in paragraph (h)(1)(iii) of this
section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
* * * * *
0
5. Amend Sec. 1150.43 by revising the paragraph heading to paragraph
(h), paragraphs (h)(1) introductory text, and (h)(1)(ii), and by adding
paragraphs (h)(1)(iii) through (viii) to read as follows:
Sec. 1150.43 Information to be contained in notice for small line
acquisitions.
(h) Interchange Commitments. (1) The filing party must certify
whether or not 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''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (h)(1)(ii), (iv), (vii) of this
section 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) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line
in question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (h)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of
the proposed transaction and interchange commitment to the shippers
identified in paragraph (h)(1)(iii) of this section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
* * * * *
PART 1180--RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
0
6. 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
7. Amend Sec. 1180.4 by revising the paragraph heading to (g)(4)
paragraphs (g)(4)(i) introductory text, and (g)(4)(i)(B), and by adding
paragraphs (g)(4)(i)(C) through (H) to read as follows:
Sec. 1180.4 Procedures.
(g) * * *
(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 (the information in
paragraphs (g)(4)(i)(B), (D), (G) of this section 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)):
* * * * *
(B) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(C) A list of shippers that currently use or have used the line in
question within the last two years;
(D) The aggregate number of carloads those shippers specified in
paragraph (g)(4)(i)(C) of this section originated or terminated
(confidential);
(E) A certification that the filing party has provided notice of
the proposed transaction and interchange commitment to the shippers
identified in paragraph (g)(4)(i)(C) of this section;
(F) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(G) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(H) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
* * * * *
[FR Doc. 2013-21548 Filed 9-4-13; 8:45 am]
BILLING CODE 4915-01-P