E8-5058. Rail Transportation Contracts Under 49 U.S.C. 10709

AGENCY:

Surface Transportation Board, DOT.

ACTION:

Advance Notice of Proposed Rulemaking.

SUMMARY:

The Surface Transportation Board seeks public comments on a proposal to require railroads to include a disclosure statement in any document that they consider to be a rail transportation contract under 49 U.S.C. 10709.

DATES:

Comments are due by May 12, 2008.

ADDRESSES:

Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and comply with the instructions at the E-FILING link on the Board's Web site, at: http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: STB Ex Parte No. 676, 395 E Street, SW., Washington, DC 20423-0001.

Copies of written comments will be available from the Board's contractor, ASAP Document Solutions (Mailing Address: Suite 103, 9332 Annapolis Rd., Lanham, MD 20706; e-mail address: [e-mail]; telephone number: 202-306-4004). The comments will also be available for viewing and self-copying in the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site at: http://www.stb.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Timothy J. Strafford at 202-245-0356. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION:

In recent proceedings, the Board has noted that there is often no clear distinction between regulated common carrier rates and unregulated rail transportation contracts. See, e.g., Kansas City Power & Light Company v. Union Pacific Railroad Company, STB Docket No. 42095 (STB served July 27, 2006); Interpretation of the Term “Contract” in 49 U.S.C. 10709, STB Ex Parte No. 669 (STB served Mar. 29, 2007). The Board has instituted this rulemaking proceeding to consider imposing a requirement that each rail carrier provide a full disclosure statement when it seeks to enter into a rail transportation contract under 49 U.S.C. 10709. The statement would explicitly advise the shipper that the carrier intends the document to be a rail transportation contract, and that any transportation under the document would not be subject to regulation by the Board. Moreover, it would advise the shipper that it has a statutory right to request a common carriage rate that the carrier would then have to supply promptly, and such a rate might be open to challenge before the Board. The proposal would also require that, before entering into a rail transportation contract, the carrier provide the shipper an opportunity to sign a written informed consent statement in which the shipper acknowledges, and states its willingness to forgo, its regulatory options. Interested persons are invited to comment on the proposal and the Board welcomes suggestions as to what language should be included in this full disclosure/informed consent requirement.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

Authority: 49 U.S.C. 721, 49 U.S.C. 10709.

Decided: March 6, 2008.

By the Board, Chairman Nottingham, Vice Chairman Mulvey, and Commissioner Buttrey.

Anne K. Quinlan,

Acting Secretary.