Modification of the Carload Waybill Sample and Public Use File Regulations

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, Transportation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Modifications to the existing regulations are proposed that

would require all railroads to identify contract movements in the

annual carload waybill sample. A 30-year limit on the confidentiality

of the ``Waybill Sample'' is also proposed.

DATES: Comments are due February 21, 2000.

ADDRESSES: Send comments (an original and 10 copies) referring to STB

Ex Parte No. 385 (Sub-No. 4) to: Surface Transportation Board, Office

of the Secretary, Case Control Branch, 1925 K Street, NW, Washington,

D.C. 20423-0001.

FOR FURTHER INFORMATION CONTACT: Paul A. Aguiar, (202) 565-1527 or H.

Jeff

[[Page 733]]

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 the

Waybill Sample reporting requirements must be revised to ensure that

accurate and representative data on contract movements are

reported.2 At the same time, confidentiality must be

maintained and the reporting burden held 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\ Most class I railroads identify contract movements in the

Waybill Sample. Some carriers, however, do not, and as a result, the

accuracy and representativeness of Waybill Sample suffers.

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In an Advance Notice of Proposed Rulemaking (ANPR), served 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.

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

such contract shipment. We explained that, to maintain the

confidentiality of the contract rate information, we would substitute

an average revenue value for the actual revenues in the version of the

Waybill Sample that is made publicly available. We suggested that these

changes would fulfill our need for more complete contract data, while

protecting sensitive commercial contract rate information, and would

allow others to conduct accurate, broad-based economic studies.

Finally, we requested comments on limiting the confidentiality of the

Waybill Sample records to 20 years.

We received comments from AAR, the U.S. Department of

Transportation (DOT), the Western Coal Traffic League (WCTL), David L.

Hall (Hall), and Escalation Consultants, Inc (EC).

1. Identification of Contract Shipments

AAR objects to mandatory flagging and suggests that the decision to

identify contract movements should be left to the carriers. AAR

questions the need to identify contract movements and argues that the

flagging requirement would impose added administrative and cost burdens

on the railroads.

DOT supports requiring the railroads to identify contract

shipments. DOT states that this change will bring greater consistency

to the Waybill Sample and improve the Board's capacity to monitor and

analyze the rail industry. WCTL and Hall also support requiring

railroads to identify contract shipments in the Waybill Sample,

suggesting that it will increase the accuracy of the data and the

sample's usefulness.

We agree that we need accurate information on the rail industry for

monitoring and regulating that industry. Inaccurate information on the

amount and nature of traffic moving under contract (and thus beyond our

regulatory control) could affect our assessment of the potential impact

of our decisions on rail transportation issues.

The collection of this contract data should place little additional

burden on the industry. The proposed rule will have no impact on those

carriers already flagging contract movements and, judging from the

willingness of many railroads to do so voluntarily, should place only a

relatively minor burden on those not currently flagging contracts.

2. Masking of Contract Revenues

Under current procedures each carrier that flags contract shipments

is permitted to encrypt (mask) the revenues associated with such

shipments so long as it provides us with the necessary information to

develop the actual contract revenues. In an attempt to provide a more

useful method of masking all revenue information in the Waybill Sample,

we suggested developing an average revenue per ton-mile by Standard

Transportation Commodity Code within broad geographic areas that we

would substitute for actual revenues in the publicly available Waybill

Sample. The commenting parties uniformly oppose this proposal. AAR is

concerned that the submission of unmasked contract revenues (even

though the revenues would be masked prior to any public release) would

increase the risk of inadvertent release of confidential information.

DOT, EC, WCTL and Hall are concerned that the use of broad geographic

aggregations would result in worse, rather than better, information

being available. Given the parties' universal opposition to this

proposal, we will not pursue it further.

Under the proposed regulations, railroads will be allowed to

continue to develop their own procedures to mask contract revenues,

provided that those procedures are disclosed to us. However, if

carriers do not want to develop their own masking procedures, we will,

upon request, mask the revenues once the waybill information is

submitted or provide a masking procedure for the carriers to apply.

3. Waybill Confidentiality Time Limit

Finally, to conform to requirements for storage of the Waybill

Sample by the Archives, the ANPR requested comment on limiting the

confidential treatment of contract revenue information contained in the

Waybill Sample to a 20-year period. We selected 20 years because most

rail contracts do not exceed a 20-year term. Thus, we believed this

period would be adequate to protect commercially sensitive shipper and

railroad data.

AAR argues that the confidential information should never be made

public and should be destroyed at the end of the period for which the

Board normally maintains these records. WCTL and Hall support the

proposed 20-year confidentially limit, while EC regards the 20-year

period as excessive and suggests a time limit of no more than 5 to 7

years.

The Archives, however, has concluded that the Waybill Sample is a

permanent Board record and, as such, must be retained. 3

Therefore, our task here is not to determine whether the Waybill Sample

should be kept, but rather how long it should remain confidential. We

are concerned about the premature release of information that continues

to have proprietary commercial value. For that reason, we now propose a

confidentially period of 30 years, a period significantly longer than

the term of any rail contract of which we are aware. We also propose

that the Waybill Sample be sent to the Archives as we maintain it--the

contract flags will be included, but the contract revenue will remain

masked.

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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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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 preliminarily 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.

List of Subjects in 49 CFR Part 1244

Railroads, Reporting and recordkeeping requirements.

Authority: 49 U.S.C. 11145.

Decided: December 27, 1999.

By the Board, Chairman Morgan, Vice Chairman Clyburn, and

Commissioner Burkes.

Vernon A. Williams,

Secretary.

For the reasons set forth in the preamble, title 49, part 1244 of

the Code of Federal Regulations is proposed to be amended as follows:

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, D.C. 20423-0001, ATTN: Waybill Coordinator.

[FR Doc. 00-209 Filed 1-5-00; 8:45 am]

BILLING CODE 4915-00-P